Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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Labor Activism Brings Spotlight to Freedom of Speech

Daniel Huchla

Have you ever wondered how your food is made?  More specifically, have you ever wondered if your food is produced ethically? There is one approach that aims to promote compliant business.[i]  The second approach is to expose unethical business practices through investigative journalism. For attempting to expose allegedly unethical practices Andy Hall faced the prospect of up to seven years in prison on the basis of the Thai law of defamation. What about freedom of speech and the press? Using U.S. law as a model, Thailand should modify its law to eliminate the possibility of criminal liability for defamation.

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Photo Credit: Kevin Casper – Public Domain Pictures

 

Andy Hall, a British lawyer and academic, collaborated with Finnwatch, a Non-Governmental Organization based in Finland, as a researcher on labor standards in the Food Industry in Thailand.[ii]  This venture resulted in the 2013 publication “Cheap Has a High Price”, exposing immigration and labor issues related to specific producers of tuna and pineapple products in Thailand.[iii]  As a result, Natural Fruit Company Ltd. lost business and brought suit against Andy Hall in Thailand alleging defamation.[iv]  During the course of the multiyear litigation there was a degree of public outcry from elements of the international community on Andy Hall’s behalf.[v] On September 20, 2016, the Bangkok South Criminal Court found Andy Hall guilty of criminal defamation and cybercrimes.[vi]  Hall received a suspended three year sentence and a 150,000 baht ($4,300) fine.[vii]  But, civil liability still looms in the distance, especially if Thailand follows res judicata, by which Hall could be precluded from arguing his civil liability since he has already been found criminally liable, which presumably has a higher standard of proof.[viii]

 

As a  sovereign nation, Thailand has control over the laws and their application within its borders. The issue of domestic sovereignty echoes the common phrase “When in Rome do as the Romans do.”[ix] Under Thai law, defamation can result in criminal and civil liability.[x] Criminal defamation is defined as “imput[ing] anything to the other person before a third person in a manner likely to impair the reputation of such other person or to expose such other person to be hated or scorned.”[xi] Because Mr. Hall’s work was published online (albeit in Finnish), he was additionally subjected to liability under the Computer Penal Code, which has stiffer penalties.[xii]

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Photo Credit: MBogdan – Mary’s Rosaries

Thailand does allow defenses in actions for defamation. A defendant may prove the truth of his statement, or if the plaintiff is a “subject of public criticism” the defendant may assert the statement was a “fair comment” made in “good faith.”[xiii]  In the case of Andy Hall it is uncertain where the gap exists that the defense of truth was unsuccessful. But, there has been criticism regarding the limited sample size for interviews, leading one to believe that the facts may not be inherently false, but just overgeneralized.[xiv]  That this is sufficient to find liability is an unfortunate byproduct of a system that places the burden upon the defendant to prove truth.

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What if Andy Hall had investigated a company in the United States instead? Under United States law, the company as Plaintiff would have to show that a false statement was made.[xv]  Changing the burden of proof in this instance would have drastic effect. If the publication was just overgeneralized, it would be equally difficult to prove the statement was false in the United States as it was to prove that it was true in Thailand. Even if the company were able to prove the statement to be false there are further protections for speech in the United States. Depending on whether the company is considered private or public, they would additionally be required to show either negligence or knowing culpability (“actual malice”) on behalf of Mr. Hall.[xvi] With all these protections, Mr. Hall likely would not have been found civilly liable for defamation in the United States. Within the U.S., there are several states that allow for criminal liability for defamation; but, these laws are confined by the same robust protections as civil defamation.[xvii]

However, these protections have not always existed in the United States. The law of defamation has evolved massively over the past sixty years in the United States. Prior to 1964, defamation allowed for per se liability.[xviii] Under this system, falsity was the only thing that needed to be proved.[xix] We don’t have to look very far in United States history for some level of liability to be foreseeable. This change additionally reflects that legal reform is possible and valuable.

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Going forward, what should be the reform priorities on this issue in Thailand? Ideally, the burden of proof should be shifted from the Defendant to the Plaintiff. Placing the burden upon the defendant can have a chilling effect on speech. The burden of proof coupled with criminal responsibility for defamation is guaranteed to limit speech. In this regard, Andy Hall is just the tip of the iceberg; a Thai woman is facing similar criminal charges for attempting to bring light to the alleged graphic murder of her relative.[xx]

Daniel Huchla is a third year law student at the University of Baltimore and a graduate of Miami University with a Bachelor of Music. During his undergraduate studies, he performed in an International Opera Festival located in Brazil. He also serves as Associate Managing Editor for the University of Baltimore Law Review. Areas of interest include Administrative Law, International Humanitarian Law, International Criminal Law, and National Security Law. He is currently a Law Clerk with the Law Offices of McCabe, Weisberg & Conway.

[i] http://fairtradeusa.org/about-fair-trade-usa/mission

[ii] http://www.finnwatch.org/en/news/408-andy-hall-found-guilty-in-a-shock-ruling-by-bangkok-court

[iii] http://www.bbc.com/news/world-asia-37415590

[iv] Id.

[v] See e.g. https://www.walkfree.org/andy-hall/

[vi] BBC, supra note iv.

[vii] Id.

[viii]  Finnwatch, supra note iii; see e.g. Taylor v. Sturgell, 553 U.S. 880 (2008).

[ix] http://www.phrases.org.uk/meanings/when-in-rome-do-as-the-romans-do.html

[x] See Finnwatch, supra note iii.

[xi] https://www.samuiforsale.com/law-texts/thailand-penal-code.html#325

[xii] https://www.samuiforsale.com/law-texts/computer-crime-act.html

[xiii] http://kellywarnerlaw.com/thailand-defamation-laws/

[xiv] http://www.dw.com/en/rights-activist-andy-hall-sentenced-for-defaming-thailand-fruit-company/a-19562755

[xv] See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986); 1 Law of Defamation § 5:13 (2d ed.).

[xvi] 1 Law of Defamation § 1:34 (2d ed.)

[xvii] http://www.firstamendmentcenter.org/criminal-libel-statutes-state-by-state

[xviii] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[xix] Id.

[xx] http://www.prachatai.com/english/node/6590


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Governmental Media Regulation: U.S. vs. Bhutan

Raiven Taylor

As we all know, the media is used to spread the most recent news and current events. What many people do not know is that the media have rules and regulations they must follow in order to stay on TV and/or the radio. Many rules that regulate the media differ from country to country. Although the U.S. Constitution’s First Amendment guarantees the right to freedom of the press, usually with minimum regulations, other countries, such as Bhutan, which will be explored in this blog, do not have such freedom.

The U.S. gives most leeway to print media, such as newspapers, magazines, and flyers.[i] The only real regulation for print media is to deter defamation. [ii]  Defamation happens when untrue information is printed that may cause harm to someone.[iii] Defamation can be either written (libel) or communicated verbally (slander). Broadcasting media are a little more regulated than print.

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Broadcasting media are also regulated against defamation. In fact, broadcasters and their networks can be sued for slander.[iv] Broadcasting is also heavily regulated by the Federal Communications Commission (FCC).[v] The FCC polices the content of the airwaves and has the authority to fine or revoke broadcasting licenses for violating any of the following: broadcasting obscene programs at any time, broadcasting indecent programs during certain hours, or broadcasting profane language during certain hours.

Having regulations on the media could eventually spill into social media. However, to date, the U.S. has only come up with basic regulations on social media, such as the right of privacy, how one may create social media policies, and protocols for marketing on social media.[vi] Because social media is a growing media source, it has been very hard for the government to regulate.

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On the other hand, Bhutan has more restrictions on media outlets. Even though Bhutan claims to have a Constitution allowing free speech and opinion, Bhutan has an Act that prohibits criticism of the king as well as anything that may undermine or attempt to undermine the security and sovereignty of Bhutan.[vii] The government even restricts and censors topics that involve Nepali-speaking residents having to leave Bhutan.[viii] Many of the media outlets hesitate to push the limits of the regulations because the media depends on the government for funding and support.[ix]

Bhutan is a country that is far behind the times on Internet and television, both of which arrived in 1999.[x]  Even though Bhutan was behind the times, almost 10% of their population is on social media.[xi] Social media gives the Bhutanese an outlet to express their own opinions and views and changed the idea of criticizing the government, giving the younger generation an opportunity to have an opinion. [xii] However, due to the growth of social media and the presence of the population on social media in Bhutan, the government decided in 2014 to draft policy on the use of social media.[xiii]

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The government agreed that a huge benefit of having a social media policy would be for the government to engage its citizens and officials in the use of social media to share government information as a developmental tool for social, economic, and political change.[xiv] Discussions concerning social media use in Bhutan have even led to the idea of incorporating curriculum in the schools to have a social media component.[xv] Even though the Bhutanese government may appear to support the idea of social media and is not trying to regulate social media, the government has created guidelines one must follow when using social media. These include the requirement to be accurate, to never post anything malicious or misleading, to respect the Constitution and all laws, and to act in good judgment.[xvi] These are many things that young people do not think of when posting their opinions.

Given an option between the United States and Bhutan, I would choose to use social media in the U.S. The U.S. may regulate TV, radio, and print, but it does not regulate it in a way that would affect one’s rights. The U.S. can write, state, or show on TV what’s going on in the government, even if they disagree with what the government is doing. On the other hand, Bhutan regulates its media outlets in a way that only shines light on the government’s positive aspects instead of the negative. The Bhutanese government does not allow its citizens to share their opinions if they disagree with what the government is doing. While beneficial to maintaining the status quo in Bhutan, this restriction of rights affects the rights of the media and Bhutanese citizens alike.

Raiven Taylor is third year law student at the University of Baltimiore School of Law and is completing her concentration in International Law. She has an undergraduate degree in Political Science from Bowie State University. She has studied abroad in London, England and Clermond-Ferrand, France. She is an Senior Staff Editor for the Journal for International Law as well as Secretary for the International Law Society. Additionally, Raiven is a Rule 16 student attorney in the Immigrant Rights Clinic. Her passion and interest in international law is human trafficking and international human rights law.

[i] http://study.com/academy/lesson/rules-governing-the-media-definition-examples.html

[ii] Id.

[iii] Id.

[iv] Id.

[v] Id.

[vi] http://blogs.forrester.com/nick_hayes/13-07-31-five_common_legal_regulatory_challenges_with_social_media

[vii] https://freedomhouse.org/report/freedom-press/2013/bhutan

[viii] id.

[ix] Id.

[x] http://www.bbc.com/news/world-asia-25314578

[xi] Id.

[xii] Id.

[xiii] http://www.undp.org/content/bhutan/en/home/presscenter/articles/2015/01/14/bhutan-forms-its-first-social-media-policy.html

[xiv] Id.

[xv] Id.

[xvi] http://www.gnhc.gov.bt/wp-content/uploads/2011/05/RGoB-Draft-Social-Media-Policy.pdf