Criminal defamation lawsuits are used generously here in both political and commercial disputes. In commercial disputes, they are often used to intimidate and silence business rivals and complaining customers. And foreigners are not immune to such suits.
For example, American investor, Dov Plitman, was charged by a Bangkok luxury condo developer with two counts of criminal defamation after going public in his dispute with that developer. I don’t know if his complaints are legitimate or not, and even if I had views on that subject, I wouldn’t raise them, mainly because I don’t want to be added as a co-defendant in that criminal defamation action.
The chilling effects on a foreign investor of facing criminal charges in a Thai court are tremendous. Imagine facing criminal charges for simply airing what you considered to be legitimate business complaints or responding to inquiries about a commercial dispute? Would you talk to anyone (for example, the press, the consumer protection board) about your complaints if you knew that anything you said could be the subject of criminal charges in a Thai court?
Imagine you believe you are the victim of fraud or self-dealing by a local business partner. Suppose this business partner is an “influential person”. Would you raise and pursue such claims even if you were convinced those claims are true? In Thailand, private parties can file criminal defamation claims, and truth is not necessarily a defense.
Now, pause for a moment, and think about the sort of things that typically get said in any business dispute anywhere in the world. The discourse can easily get quite heated.
Complicating matters, one of the more common tactics of plaintiffs in such actions is to file suits across the country – often in remote up-country provinces where a newspaper covering the purportedly defamatory comment might have been sold – to cause the maximum amount of inconvenience to a defendant in a criminal defamation lawsuit. Is it worth pursuing what you believe to be a legitimate claim when the other side might respond with multiple criminal defamation lawsuits across Thailand?
As long as criminal defamation actions can be used by private parties, they will be used. You can’t blame Thai lawyers for this. But you should ask if the ability to commence criminal defamation proceedings have a legitimate place in the toolbox of any lawyer representing a private party?
And when doing business in Thailand, particularly with an influential person (who may be considered to be an attractive partner precisely because of his influence), you should pause and consider the consequences if things go awry and a dispute arises. No one enters into a business relationship expecting it to lead to a dispute, but it would be naive to think that a dispute won’t arise. Business disputes are as much a feature of the Thai business environment as they are of the U.S. business environment.
But one big difference is that you could quickly find yourself facing criminal charges in Thailand for raising the type of claims that are typically raised in any commercial dispute anywhere in the world.