Category Archives: Defamation

To Give and Not Receive?

When a bribe is paid, someone must pay that bribe, and someone must receive that bribe.  One cannot occur without the other.

On 14 September 2009, Gerald Green and his wife, Patricia Green, were convicted in a U.S. Federal Court of bribing the former governor general of the Tourism Authority of Thailand (TAT), Juthamas Siriwan, to get lucrative film festival contracts as well as other TAT contracts.  They were convicted of, among other things, violating the U.S. Foreign Corrupt Practices Act (FCPA) for paying kickbacks to Juthamas Siriwan.  According to the FCPA Blogsite:

the Greens paid approximately $1.8 million in bribes to the former governor through numerous bank accounts in Singapore, the United Kingdom and the Isle of Jersey in the name of the former governor’s daughter and a friend of the former governor. The Greens received contracts that generated more than $13.5 million in revenue to their businesses.

The FBI affidavit filed in support of the initial charges against the Greens provided a detailed list of the payments.  One would think that the FBI would not provide such a detailed list unless they were sure of their evidence and, sure enough, the Greens were convicted after just a few hours (not days) of deliberations.  Sounds like rock solid evidence that bribes were paid, doesn’t it?

Although the FCPA does not apply to a foreign official who receives a bribe (unless they commit an act within the U.S.), the U.S. indicted Juthamas Siriwan on related charges of money laundering and other alleged crimes.  A copy of the indictment can be downloaded here: (http://www.mediafire.com/?jz3mgylictc).  The U.S. government typically doesn’t go after foreign officials, but they did here.

So what is happening in Thailand to the foriegn official who is alleged to have received US$1.8 million in bribes?   Well, there were news reports that she was threatening to file criminal defamation charges (surprise!) against anyone who claims she received bribes.  (We make no such claim.)  So what are the Thai authorities doing?  According to today’s Bangkok Post:

Methee Krongkaew, the person in charge of the subcommittee, said his panel would forward its findings to the main NACC committee if Ms Juthamas failed to show up to defend herself. The main committee would then decide whether to submit the case to the public prosecutor for indictment.

Anything else?  Well she presumably isn’t planning any holidays in the U.S. in the near future.  

She might want to reconsider holiday plans outside of Thailand altogether.  The U.S. has a tradition of aggressively seeking the extradition of federal fugitives, as anyone who has read a paper in Thailand over the past few weeks will know from the Victor Bout case.  But what they may not know is that U.S. authorities also seek extradition of alleged white collar criminals – even when they are foreign nationals – from foreign countries.   And they can be downright tenacious about it, turning up where you would not expect them.

In one case, a foreigner flying to Australia was detained before he officially entered the country, and forced to leave, in the company of several U.S. law enforcement officials, on the next flight to the U.S. (they were obviously trailing him on his flight to Australia).  So a vacation in Australia is probably not a good idea either.  Where else?  Hong Kong? Singapore? No idea.  And we wouldn’t say even if we had one.

Criminal Defamation as a Business Tool

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.