Posted on 18 Dec. 2017
Destination Defamation: South East Asia
By Slater and Gordon
Australian tourists are famous for their laconic humour and candid manner of speaking. Wherever you travel, you can be sure you’ll find a straight-talking Aussie on vacation. While we’re very accepting of frank and forthright dialogue at home, Australians abroad can be at risk of civil and criminal consequences for saying the wrong thing in the wrong company. In this ongoing series, we examine the defamation laws of popular tourist destinations and how to avoid the associated risks.
Part I: South-East Asia
Every year, hundreds of thousands of Australians escape to a variety of countries in South-East Asia. The relative strength of the Aussie dollar and the allure of tropical locations, ancient cultures and delicious cuisine make places like Thailand, Indonesia and Vietnam hotspots for Australian tourists. These countries, however, have strictly enforced laws that protect reputation that you should be aware of when travelling.
Defamation is both a civil and criminal offence in Thailand.
The Thai Criminal Code defines Defamation as an offence against liberty and reputation. The Criminal Code proscribes that ‘whoever imputes 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, is said to commit defamation’. Though formally worded, this is a very broad provision and only requires that the accused has communicated something in a manner likely to impair the reputation of another. The intent of the accused and the existence of actual damage to reputation are irrelevant.
These laws also apply to statements made about deceased people, if the conduct is likely to impair the reputation of the father, mother, spouse or child of the deceased.
Truth is a defence to a criminal charge for defamation, if the comments made concern “personal matters” and the truth is not in the public interest, then the defence cannot be pleaded. The penalty for Defamation under the Criminal Code is up to one year of imprisonment, a fine of up to 20,000Baht (~A$750) or both.
While the monarchy in Australia is mostly symbolic, the King of Thailand is the country’s head of state and the royal family of Thailand have ruled continuously since 1782. Insulting or defaming the royal family in Thailand is a serious criminal offence. The Criminal Code treats such conduct as an offence relating to the security of the kingdom and anyone who defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent faces between three and fifteen years in prison. Thailand is aggressive in prosecuting their lèse majesté laws against people from all walks of life – not just political activists or dissidents.
Defamation is also a civil offence in Thailand. While Australia has abolished the distinction between slander and libel, Thailand retains these terms. The relevant provision of the code provides that a person who ‘contrary to the truth, asserts or circulates as a fact that which is injurious to the reputation or the credit of another or his earnings or prosperity in any other manner, shall compensate the other for any damage arising therefrom, even if he does not know of its untruth, provided he ought to know it.’
A noteworthy distinction between Australia and Thailand’s civil defamation laws is the broad operation of Thailand’s liability provision. In Australia, only damage to an individual’s reputation is protected whereas Thailand’s laws protect the reputation or the credit of another or his earnings or prosperity.
While Thailand is a popular tourist destination, the kingdom places a very different emphasis on freedom of expression than that which exists in Australia, and travellers should be accordingly wary of their conduct.
Like Thailand, defamation in Indonesia is both a civil and criminal offence. Indonesia’s laws are less clearly articulated than Thailand’s and therefore much broader in their operation. Where Thailand’s defamation laws are criticised for the limitations they place on freedom of speech, Indonesia’s equivalent laws have been condemned for a lack of clarity and inconsistent application.
Indonesia’s Penal Code (the Kitab Undang-Undang Hukum Acara Pidana or “KUHAP”) deals with the country’s criminal defamation, creating separate offences for different types of publication. The KUHAP draws a distinction between the following crimes:
- slander (oral defamation);
- libel (written defamation);
- calumny (slander or libel with knowledge of the untruth of the statements);
- simple defamation (any publication that is not slander or libel);
- calumnious submissions (false written statements to authorities about another individual); and
- calumnious insinuations (false spoken statements to authorities about another individual).
Slander attracts a penalty of up to nine months in prison or a 300 rupiah fine (~A$0.03), libel attracts a penalty of up to sixteen months in prison or a 300 rupiah fine and those found guilty of the calumny offences face up to four years in prison. Truth acts as a defence to a charge of the above offences, alongside defences whereby the offender has acted in ‘the general interest of for a necessary defence’. The KUHAP does not elaborate on either of these concepts and their determination is left to the discretion of the presiding judge.
Indonesia’s civil defamation laws are implemented through the Civil Code (Kitab Undang-Undang Hukum Perdata or ‘KUHP’) which provides that 'A party who commits an illegal act which causes damage to another party shall be obliged to compensate therefor’. The same defences that exist to the criminal offence apply to the civil offence and a civil claim in defamation can be brought on behalf of spouses, parents, grandparents and grandchildren after the death of the victim.
Legal practitioners and academics in Indonesia are increasingly critical of the country’s defamation laws. Extra care should be taken in Indonesia as the same act can give rise to both criminal and civil penalties.
Vietnam’s offences relating to damage to reputation operate differently to Indonesia and Thailand’s. Criminal provisions are much broader than just defamation, making humiliating another person a criminal offence and civil penalties from damage to reputation are considered a breach of human rights.
The Penal Code in Vietnam creates multiple offences regarding reputation, which are considered Crimes Infringing upon Human Life, Health, Dignity and Honour. The Code makes it a crime to humiliate another person by seriously infringing upon the dignity or honour of that person. The first offence can attract a prison term of between three months and two years. Repeated offences or offences against officials, teachers, doctors or carers mandate a prison sentence of between one and three years. Offenders may also be banned from practicing certain occupations for one to five years.
The Code creates the offence of slander, whereby it is illegal to ‘trump up or spread stories knowing them to be fabricated in order to infringe upon the honour or damage the legitimate rights and interests of other persons or make up a story that other persons commit crimes and denounce them before the competent agencies’.
Like the crime of humiliation, the first slander offence can attract a prison term of between three months and two years. Slandering multiple people, parents or grandparents, officials or committing the crime in an organised manner mandates a prison sentence of between one and seven years and can also attract a fine of one between million and ten million Vietnamese Dong (~A$55-$550).
The Vietnamese Civil Code stipulates that when a person’s rights have been infringed, they can request that a court order the person who committed the infringement pay compensation for material or spiritual damages’. It also creates such an enforceable protection with regard to the rights of honour, dignity and reputation.
Neither of the codes articulate defences to allegations of criminal or civil defamation. Travellers should exercise caution and civility in order to avoid the potential outcomes from infringing the above provisions in Vietnam.
Disclaimer: While every effort has been made to ensure the accuracy of the above information as of August 2017, it is not an adequate substitute for professional legal advice.
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