Here is an important piece written by Ian Yarwood concerning the forthcoming trial in Thailand of two journalists, including Australian journalist Alan Morison.  It is his prediction of how the trial will go. As Ian says towards the end of the piece “… it would be disastrous for Thailand if the journalists were found guilty of any of the offences.  It would also be disastrous for the journalists if they were sent to jail…”

Ian writes:

As the trial dates of 14 -16 July 2015 approach, people have been trying to predict what might happen over the next two weeks.  For what it’s worth, this is my attempt to see two weeks into the future.

I predict that the journalists will prevail and that they will do so on one of those famous Thai “technicalities” that will allow The Royal Thai Navy to save face and that will also diffuse all the unnecessary drama we have witnessed.  I am not too concerned with which “technicality” the Phuket Provincial Court might find most attractive but I can outline a few possibilities.

I should stress that I am not privy to any advice from or discussions with the journalists’ Thai legal team.  In addition, my discussion of the reasons why I think the journalists will prevail is fairly limited but the publication by David Streckfuss (referred to below) does go into greater detail of Thai defamation law.

CLARIFYING SOME MATERIAL FACTS 

Those readers with limited or no knowledge of the background facts would be well served by reading part of the open letter from Lawyers’ Rights Watch Canada (“LRWC”) dated 5 January 2015 on its website and republished on 7 January 2015 on Phuketwan under the headline:  “Judicial Harassment in Thailand and Consular Protection of Mr Alan Morison.”  It is one of the few articles I have read on this matter that is really accurate in the reporting of the background facts.

Unfortunately, I have read many press releases, media reports, blogs and comments from readers of Thai websites that contain factual errors of varying degrees of importance.  One particularly serious error in the media reports seems to have occurred when media outlets paraphrase each other’s stories.

Many months ago, I read one disappointing letter from the Australian Department of Foreign Affairs and Trade to Jenny Braddy (one of Alan Morison’s sisters) that contained several misleading statements.  Anyone who reads the LRWC article will also observe that, according to Jenny Braddy, the Australian Foreign Minister incorrectly asserted that British human rights activist, Andy Hall had his passport returned from a Thai court because he made an apology, when in fact he never made any apology.  Andy Hall successfully defended a charge of criminal defamation in the Prakanong Court, Bangkok.

Some of the comments from readers of websites seem insightful but others are wildly inaccurate when making statements of fact.

The precise words in the paragraph in the Phuketwan story are of vital importance.  The relevant paragraph referred to “Thai naval forces” and not to “The Royal Thai Navy.”

The bottom line is that in the relevant Reuters paragraph, republished by Phuketwan, Reuters did not point the finger at The Royal Thai Navy.  This is the most fundamental and important fact to understand when trying to predict the events of the coming two weeks.

Reuters did (correctly or incorrectly) directly point the finger at The Royal Thai Navy in a subsequent story it published on 5 December 2013, some five months later.  Most readers will be aware that despite this The Royal Thai Navy has not pursued Reuters or any other news services – just tiny Phuketwan.

It should not be lost on anyone that the conduct of The Royal Thai Navy has been dubious to say the least.  It comes across as being a bully that wants to pick on the little guy (Phuketwan) but wishes to avoid a bigger target such as Reuters.  It should also not be lost on anyone that an appropriate course of action for the police and prosecutors to take would be to investigate the reason(s) why The Royal Thai Navy targeted Phuketwan in particular.

It is worth noting that Phuketwan did publish a reply from The Royal Thai Navy three days after the story of 17 July 2013.  Phuketwan also published a favourable story regarding The Royal Thai Navy on 18 December 2013.  These actions would be important in a Western legal system (demonstrating an absence of malice) but these actions are even more important in the Thai legal system where the intentions of the person making the allegedly defamatory statement are very important.

On or about 26 June 2015 Alan Morison received a letter from the office of the Thai Prime Minister advising that the Attorney General’s Office would not be requested to drop the Computer Crimes Act charges.  Therefore, it seems almost certain that the case will proceed to trial on 14 July 2014.

I have seen comments from members of the public suggesting that Alan Morison might call for an adjournment.  I believe this is most unlikely.  Had he wished to avoid the trial he could have stayed in Australia earlier this year but he returned to face the charges.  In addition, it is in his interests to bring the matter to a head so that he and Khun Chutima can get on with their lives.

95% CONVICTION RATE

According to David Streckfuss (the author of the publication “Truth on Trial in Thailand”) some 95% of criminal defamation charges result in convictions.  This is a frightening statistic and possibly the most sobering aspect of the situation that the journalists find themselves in.

Few things are certain except in hindsight.  However, for the reasons I shall outline below I believe that the odds are in favour of the journalists.

REASONS WHY THE JOURNALISTS SHOULD PREVAIL

In British based legal systems local councils and government bodies cannot sue for defamation although individuals employed by them can do so.  It would appear that in Thailand the situation is not entirely clear.  It might be possible for a branch of the armed services to bring a criminal defamation charge.

I note that this seems to be a test case as to whether or not a branch of the armed services can bring criminal defamation charges and charges under the Computer Crimes Act 2007.  (In the Thai language there is no distinction between the singular and the plural so the Act is sometimes referred to as the Computer Crime Act 2007)

Streckfuss does discuss a few cases in which the Courts considered which groups of people could bring criminal defamation charges.  The issue of whether or not The Royal Thai Navy can sue will be tangled up with the whole notion that the words “Thai naval forces” and whether those words can include or mean persons outside the Royal Thai Navy.  The larger and less well defined the group is the more likely it is that the Court will decide that the “plaintiff” is unable to sue.

It is unclear but it is quite possible that the Court will decide that The Royal Thai Navy cannot sue at all.  Alternatively, it might decide that The Royal Thai Navy cannot sue in these special circumstances where the correct plaintiff might include Thai Marine Police, militia commanders etc.

I would imagine that the Court would prefer to leave the various branches of the Royal Thai armed services with the right to sue but that it might be attracted to a decision that The Royal Thai Navy cannot sue in these specific circumstances where a very vague term is used.  A favourable result could thereby be achieved for the accused without creating an unfavourable precedent for the armed services.  (Although I understand that the concept of “precedents” is not as important in Thai law as it is in British law)   The charges could then be dismissed.

Should the Court find that The Royal Thai Navy is able to sue even in these circumstances then the obvious argument for the journalists is that plaintiff was not expressly named and that the plaintiff was not referred to by implication.  This would appear to be a strong argument that the offence of defamation had not been established by the plaintiff.  If the Court finds favour with that argument then the charges should be dismissed.

I refer to the excellent report of the Brisbane barrister, Mr Mark Plunkett concerning the criminal defamation case of Natural Fruit Co Ltd v Andy Hall. http://www.ictur.org/Eng/Plunkett.html

Although the charge against Andy Hall was dismissed on a “technicality” (prosecution failing to follow the correct interrogation procedure) Mark Plunkett did highlight the fact that Andy Hall did not name the Natural Fruit Co Ltd in the Al Jazeera interview that was the subject of the charge.

A further argument available to the journalists is that in the relevant paragraph (and indeed in the whole story) they did not accuse anyone of doing anything immoral or illegal.  They merely quoted from a report from an internationally respected news service.  This is the sort of thing that journalists do all over the world every day of the week.

Journalists can often rely on a qualified privilege in some jurisdictions provided there is no malice in the reporting.

As mentioned above, the intent of the journalists is more important in Thailand than it is in other jurisdictions.  Streckfuss does discuss this in his publication.  There is ample evidence in the Phuketwan articles of 20 July 2013 and 18 December 2013 and elsewhere to demonstrate that the Phuketwan journalists had no intention to defame The Royal Thai Navy.

I can think of one or two additional “technicalities” that might favour the journalists but it might be inappropriate for me to commit these to writing in a forum that the plaintiff’s representatives might read.

In the unlikely event that the Court decided that the journalists had identified The Royal Thai Navy in the relevant paragraph and that the paragraph was critical then the journalists would be obliged to prove: (1) that the statements (as interpreted by the Court) were true; and (2) that the journalists acted in the public interest and not for the purpose of embarrassing The Royal Thai Navy.  Obviously, it could prove extremely difficult for the journalists to satisfy the first of those requirements given that they were not the original authors of the paragraph or the story.

OTHER MATTERS

The journalists have been charged under s 14(1) of the Computer Crimes Act 2007.  The meaning of the Act (and that subsection) is vague and has been described as such by many commentators.  The subsection states that it is an offence to “import into a computer system ….false computer data in a manner that is likely to cause damage to a third party or the public.”

The criminal defamation trial of Natural Fruit Co Ltd v Andy Hall lasted approximately one week in September 2014.  As it transpired most of the evidence adduced at the trial was irrelevant given that the case was dismissed on the grounds that the prosecution had not followed the correct interrogation procedure.

In the circumstances, the Prakanong Court did not make any adverse findings against the plaintiff.  Andy Hall won but it was on a technicality, which allowed the Natural Fruit Co Ltd to “save face.”  The result was a victory for the defendant but in a sense it was also a bit of an anti-climax.

Andy Hall’s case received an enormous amount of international publicity which in my opinion did not hurt his interests at all.

The Phuketwan case has also attracted considerable international interest.  Of course, every case is important but the presiding judges will be motivated to reach a just decision based on the evidence that is brought before them.

To state the obvious, it would be disastrous for Thailand if the journalists were found guilty of any of the offences.  It would also be disastrous for the journalists if they were sent to jail.

I cannot realistically see either of those things happening though.  I see a big anti-climax coming following a couple of weeks of widespread interest.

An appropriate and just decision would be that the case is dismissed on one of the technicalities outlined above.  In the circumstances, there would be no adverse findings against the plaintiff.  The journalists would get their lives back and The Royal Thai Navy would not “lose face.”

However, The Royal Thai Navy will look like a bully and the world will take considerable notice of Thailand’s defamation laws.