Does NBTC lawsuit signal a new chilling effect?

Does NBTC lawsuit signal a new chilling effect?

Criminal defamation has often been used as a tool to silence criticism by politicians and government officials, with the media and activists the usual targets in Thailand.

Most recently, the country's communications regulator, the National Broadcasting and Telecommunications Commission (NBTC), joined the ranks of defamation plaintiffs by lodging a libel lawsuit against a prominent academic and a TV anchor for a comment in an interview on a Thailand Public Service Broadcasting (TPBS) programme about a regulatory decision.

To be exact, it was the telecommunications panel within the NBTC that filed the suit. The NBTC consists of two smaller committees - broadcasting and telecommunications. Five of the 11 members of the NBTC constitute each committee, while the chairman oversees both.

Four out of the five members of the panel joined forces in lodging the lawsuit. Pravit Leesathapornvongsa, previously a telecommunications consumer rights advocate, opted out.

The lawsuit stems from a comment by Duenden Nikomborirak, a Thailand Development Research Institute (TDRI) researcher, on the telecommunication panel's decision to postpone the return of 1800mHz concessions to next year. The concession was due to expire on Sept 15 and the frequency was originally earmarked for 4G mobile phone licence auctions.

In a comment by Ms Duenden broadcast on the This Is TPBS programme, she cited a research report claiming a one-year delay of the frequency return would likely cost the country 160 billion baht. This estimate was based on the evaluation of the 4G spectrum.

Telecommunications panel chairman Setthapong Malisuwan said this was seen by the panel as damaging to the reputation and public credibility of the NBTC and sufficient grounds for a libel lawsuit. He claimed that there has been no official estimate of the 4G spectrum and no scheduled date for the 4G rollout.

The suit, interestingly, was filed against Ms Duenden as the first defendant, and Nattha Komolvadhin, who moderates the TV programme, as the second defendant. Initial news reports on the case also reveal that the suit may be filed with the police in different localities across the country since the alleged defamatory statement was broadcast nationwide. This way, the burden of having to report to different police stations and courts in all jurisdictions would be even more considerable to the defendants.

As it is a criminal suit, Ms Duenden and Nattha could be jailed for one or two years if found guilty.

The plaintiffs are also demanding retractions in newspapers of the alleged defamatory comments.

At first glance, this suit appears as another "chilling effect" endeavour - using legal threats to silence criticism and thereby creating fear among like-minded individuals of speaking out in the future. But this particular case actually has other dimensions that are more multi-faceted than previous defamation cases between an organisations and members of the media or civil society.

For instance, in the case that was widely published in 2003 of Shin Corporation vs Supinya Klangnarong (currently an NBTC commissioner but not one of the plaintiffs here), Ms Supinya and Thai Post, a Thai-language daily newspaper, were sued for comments she made about mutually beneficial relations between Shin Corp and the Thaksin Shinawatra government. Shin Corp at the time was owned by family members of then-prime minister Thaksin, while Ms Supinya headed a media advocate civic group, the Campaign for Popular Media Reform.

Shin Corp brought criminal defamation charges and also sought 400 million baht in civil damages. In 2006, however, the Criminal court dismissed Shin Corp's case largely on grounds of right to free expression and fair comments - "statements made in good faith by way of fair comment on any person or thing subjected to public criticism".

In a lesser-known case, the Tesco Lotus supermarket chain in 2007 brought a criminal defamation case against a senior official at the Thai Chamber of Commerce and a Thai-language daily, Krungthepthurakij, seeking 1 billion baht in punitive damages for an article that said the multi-national conglomerate's expansion plans hurt the businesses of small retailers in Thailand.

The first and foremost difference that marked the case of NBTC vs Duenden and Nattha (aka TDRI and TPBS) from the previous two cases is that this is not a random case. Ms Duenden has long been a staunch critic of the regulator. Her line of public policy research, focusing primarily on energy and telecommunications, has consistently produced findings that are not favourable to the NBTC and also the National Telecommunications Commission (NTC) before it.

Furthermore, her affiliation, the TDRI, apart from being a research thinktank, has always positioned itself as a public policy watchdog. The 3G auction last year also came under heavy criticism by TDRI president Somkiat Tangkitvanich for lowering the spectrum cap to pre-empt competitive bidding.

As far as the suit against Nattha is concerned, this is quite peculiar.

Although Nattha is moderator and editor of the TV programme, she should not be sued as a separate entity from her affiliation, TPBS, which is also a broadcast licencee of the NBTC. In the two previous cases, the media organisations which published the alleged defamatory statements were both included in the lawsuit. Perhaps, the plaintiffs had searched online for cases of overseas communications regulators suing licensees for defamation and found none, just as I did.

Also, the alleged defamatory section of the programme was carried out by another reporter, who strangely was not included in the suit. So, was it the fact that she appeared on screen that made her more liable? Does killing the televised chicken scare the monkey more effectively?

Another interesting observation that could be drawn from this very lawsuit that makes it distinct from the cited previous cases is the fact that the NBTC is a public organisation - an independent organisation of the state, to be exact. Therefore, the resources used in this lawsuit would likely stem from public resources, rather than private resources, like the other two cases.

Last, but not least, the NBTC is not only a public body but also an independent regulator. Thus, good governance and public accountability are to be expected. While the organisation may be well endowed with revenues from licence fees and auction fees, making it independent from the constraints of a national budget like other state-run organisations, it does not stand aloof from public criticisms and scrutiny.

After all, Thai defamation law does comply with international standards regarding freedom of expression by allowing fair comment on matters of public interest. If the alleged statement is proven to be true or made in good faith for the public interest, we hope to see that justice and not fear prevails.

Pirongrong Ramasoota teaches and researches on media, communication, and society at the Faculty of Communication Arts, Chulalongkorn University.

Do you like the content of this article?
COMMENT (2)