SLAPP’ed Silly: Corporate Abuse of Defamation Law to Silence Criticism

May 15, 2023

The International Justice Clinic at the University of California, Irvine School of Law filed an amicus brief with the Supreme Court of Thailand in a criminal defamation case, encouraging the Court to provide human rights defenders with adequate protections against private companies’ abusive use of litigation, as required by international human rights law. 

This case is one of a series of defamation lawsuits that Thammakaset Co. Ltd., a Thai poultry farm company, filed in relation to reports which revealed the company’s alleged –  and later confirmed – serious abuse of labor rights of migrant workers from Myanmar, including forced overtime, sub-minimum wage payment, and confiscation of workers’ passports. Since 2016, the company has filed at least 37 complaints against 22 human rights defenders and migrant workers who were involved in reporting the abuses, with almost all cases either ending in dismissal or a ruling against the company. UN experts also publicly expressed concerns about Thammakaset’s expansive use of lawsuits. 

Thammakaset’s use of defamation lawsuits is emblematic of a global trend by corporations and private actors to target journalists, whistleblowers, and human rights advocates with expensive and cumbersome litigation proceedings. By forcing critics into lengthy and complex legal proceedings with expensive legal costs, these lawsuits aim at straining resources of their targets and stifling future dissent. These suits are widely known as “strategic lawsuits against public participation” (SLAPPs), and they pose a serious threat to freedom of expression. SLAPPs undermine public debate and chill public discourse. The International Justice Clinic analyzed the laws at issue by applying the standards of Article 19 of the International Covenant on Civil and Political Rights, which guarantees everyone the right to freedom of expression, providing the state with limited means to restrict it and imposing obligations to ensure an environment favorable to public debate.

The case brought against Nan Win and Sutharee Wannasiri is particularly concerning given its criminal nature and the high value of the expression at issue. In October 2018, Thammakaset filed a criminal defamation complaint against Ms. Wannasiri. Ms. Wannasiri is a well-known human rights activist in Thailand, who used to work as a human rights specialist with Fortify Rights, a prominent civil rights organization in Thailand which released a short film on Thammakaset’s labor rights abuses. Thammakaset alleged that her Twitter comments on a short film produced by Fortify Rights damaged the reputation of the company. In the Twitter comments, Ms. Wannasiri urged Thai authorities to drop criminal defamation charges against the 14 migrant workers from Myanmar. Thammakaset further filed a criminal defamation complaint against Nan Win, a Burmese migrant worker at Thammakaset, based on his testimony about labor violations at a Fortify Rights’ press conference and in its film (the cases against Ms. Wannasiri and Nan Win were combined).

On June 8, 2020, the Thai Criminal Court acquitted Ms. Wannasiri and Nan Win. Thammakaset appealed the verdict, and on March 30, 2022, the Thailand Court of Appeals upheld the acquittal. Thammakaset further appealed to the Supreme Court of Thailand.

Our amicus before the Thai Supreme Court made two main points. The first is about criminal defamation: the protection of the right to freedom of expression (ICCPR Article 19) precludes criminal defamation. There is a growing global trend to decriminalize defamation because it is incompatible with freedom of expression. Imposing criminal liability on Ms. Wannisiri and Nan Win would deviate from these international norms and trends. Second, the ICCPR obliges states, including courts, to take positive measures to ensure journalists and human rights defenders can exercise their freedom of expression without fear of SLAPPs. We thus encouraged the court to recognize the present case as a SLAPP and apply not-yet-applied anti-SLAPP provisions in Thai law to dismiss the case. We also reminded the Court that Thailand is the first country in Asia to adopt a National Action Plan on Business and Human Rights, which recognized the importance of freedom of expression and which gives another reason for the Court to apply the anti-SLAPP law . 

The expression at issue in the present case is at the heart of the freedom that ICCPR protects.  We hope the Thai Supreme Court recognizes the continuing threat of litigation against workers, human rights defenders, journalists, and others devoted to promoting and protecting the open and democratic debates in Thailand.

The Clinic’s students, Gabriel Lazo (2L) and James Tsang (2L), led the drafting work under the direction of Professor David Kaye and Digital Rights Fellow Hinako Sugiyama.