Freedom of expression and its limitations

Recent events in Thailand have highlighted the extent of freedom of expression permitted under Thai law.

The Thai constitution is the supreme law of Thailand and overrides any other law. Constitutional rights bind all institutions and all persons in Thailand. Constitutional rights may be exercised, insofar as they do not infringe others' rights. Restriction of constitutional rights may only be made by law.

All Thai citizens are entitled to equal protection. All persons are equal before the law. No person may show contempt for the monarchy. A person has a right to family, honour, reputation and privacy. Public statements or dissemination of material that infringes such rights are prohibited, except where made in the public interest.

Freedom of communication is protected. Detention, disclosure or interception of communications is prohibited, except where legally authorised. Freedom of expression is protected, except where restricted to maintain national security, or to protect rights and freedoms, reputation, public order or good morality. These rights may not be infringed by closing a publishing business, radio or TV station. Except during war, no news or information is to be officially scrutinised before publication. Owners of newspapers or other media must be of Thai nationality. Broadcasting channels for radio and television are national resources for public benefit. They are to be regulated independently from the government, in the public interest. Private or state enterprise employees who operate newspaper, radio or television businesses have freedom of expression of news and opinions, subject to the constitution, without being subject to the authority of a government agency or the business owner, provided they observe professional ethics.

Constitutional rights are enforceable through the Constitutional Court.

The Criminal Code contains many offences that may be seen as limitations on freedom of expression.

Lese majeste is committed by defaming or insulting the Royal Family. Insulting any head or accredited representative of a foreign state is an offence. Committing an unconstitutional act in order to change the law or the government by force, or to incite unrest or unlawful acts, is an offence. Instigating industrial action to change the law or coerce the government, is a crime. Insulting the Thai flag or symbol of state of Thailand or of a friendly foreign state, is prohibited. Procuring or disclosing any information or document that is officially secret, is an offence. Contempt of court is committed by insulting a court or judge or obstructing legal proceedings. Carrying out any act in relation to an object, or place of worship or group of persons, that insults a religion, is an offence. Defamation is defined as doing anything that impairs the reputation of another, which is both a crime and a civil wrongful act giving a right to claim damages. The Criminal Code defines various offences that prohibit the making, possession, dissemination, import or export of obscene material for gain.

As to newspapers and printed matter, under the Printing Act, if a false statement is printed which damages a person, he may notify the publication of its incorrectness and ask for publication of a correction. If such a correction is published, the aggrieved person has no further right of action. If a correction is refused, the person retains his right to take civil or criminal proceedings.

In relation to broadcasting, all rights to engage in broadcasting activities are owned by the government. Application to operate a broadcasting frequency must be made to the ministry concerned. In general, the Broadcasting Act (1999) sets up the National Broadcasting Committee to supervise the industry and to be the independent regulator of broadcasting activities, with power to grant licences to operate wavebands. Since the Act came into force, there has been little progress in effecting the liberalisation that it envisages. The members of the NBC have still not yet been appointed.

As to telecommunications activities, all rights to engage in telecommunications activities, are owned by the government. Application to engage in such activities has to made to the Ministry of Transport and Communications or one of the telecoms state enterprises. In general, the Broadcasting Act, as supplemented by the Telecommunications Act (2001), sets up the National Telecommunications Committee to supervise the industry and to be the independent regulator of telecommunications activities, with power to grant licences to operate telecommunications businesses. Since the Act came into force, there has been little progress in effecting the liberalisation that it envisages. The members of the NBC have still not yet been appointed.

As to electronic communications, a draft bill is under consideration concerning electronic and computer crime, but otherwise there are no specific obligations with regard to transmission of information by electronic means.

Foreigners are subject to additional restrictions that impinge on their freedom, under the Immigration Act (1979):

The police or the Immigration Committee have power to revoke a foreigner's visa. The Act specifies no grounds. If the police make such an order, there is a right of appeal to the Committee, which must be exercised within 48 hours.

Permission for permanent residence can be revoked by the Interior Minister. This is after the police have prepared a report to the Immigration Committee on the activities of the permit holder, and the Committee has approved the police report and recommendation for revocation and forwarded it to the Minister.

Upon revocation of visa or residency, a foreigner can be deported.

A foreigner can be prohibited from entering Thailand by the Interior Minister, in its absolute discretion, in the interests of public order or good morality, in the national interest, or on other specified grounds.

Where a foreigner has been convicted of certain offences and sentenced to imprisonment, he may be deported after completion of such prison sentence.

Once a foreigner's visa has been revoked and the person has been deported, a foreigner may be blacklisted to prevent his re-entry into Thailand.

A foreigner may challenge the foregoing acts in the Administrative Court.

Thailand's constitution sets out clear principles of freedom of expression. These rights and freedoms can be protected through taking proceedings in the Constitutional Court. The Criminal Code contains many specific offences that impinge on freedom of expression. Whilst freedom of expression is constitutionally protected, it is not unlimited, and care and discretion should be exercised to avoid breaches of the law.