Corruption & Defamation: The Recent TripAdvisor Controversy
The press reports about the American jailed for allegedly posting a defamatory review on TripAdvisor about the Seaview hotel in Koh Chang have cast a spotlight on Thailand’s strict defamation laws. Reports about the jailing of the American appeared on the BBC website, the New York Times and the Bangkok Post. TripAdvisor placed a “one-of-a-kind notice on the Sea View’s page [on TripAdvisor] warning travelers that the hotel was behind the jailing of a guest for his harsh reviews”. The reports have also generated considerable debate about Thailand’s defamation laws. Simply take a look at the comments on the article in the Bangkok Post.
Defamation can be a criminal matter in Thailand and criminal defamation claims are not unusual. The International Commission of Jurists has criticized Thailand’s use of “defamation provisions of the Thai Criminal Code to harass former National Human Rights Commissioner” and criminal defamation claims have been filed against migrant worker and human rights activist Andy Hall.
In Thailand, private parties can and do commence criminal proceedings. In other words, review by a public prosecutor is not required before a criminal case is filed. Private criminal proceedings for alleged defamation are not unusual. And truth is not necessarily a defense to a criminal defamation claim under Thai law. Thai Penal Code Section 330 provides:
In case of defamation, if the person prosecuted for defamation can prove that the imputation made by him is true, he shall not be punished. But he shall not be allowed to prove [truth as defense] if such imputation concerns personal matters, and such proof will not be benefit to the public.
But there is one aspect of Thailand’s defamation laws that has not received the attention it deserves. It arises in the context of anti-corruption investigations, particularly investigations by U.S. lawyers and compliance officers of alleged violations of the U.S. Foreign Corrupt Business Act (“FCPA”). Under the FCPA, when red flags of an FCPA violation are apparent, a U.S. company should investigate those red flags to see if there was any corrupt activity.
Conducting a compliance investigation into red flags (or a whistleblower concerns about FCPA violations) is not the same as accusing anyone of corruption or paying a bribe or taking bribe. It is not even the same as claiming there was corrupt activity. It is simply a preventative step that companies subject to the FCPA should take to protect themselves from liability in the U.S. for violating the FCPA. A whistleblower’s concerns, for example, may be unfounded, but it is dangerous for a company subject to the FCPA to blithely ignore the concerns of a whistleblower.
A failure to investigate the FCPA potentially exposes a party covered by the FCPA to potential liability under the FCPA. That liability could, in serious matters, amount to imprisonment in the U.S. and fines in the hundreds of millions (if not several billion) dollars.
But this could be problematic in Thailand. If, for example, a compliance officer or lawyer investigating an alleged FCPA violation repeats or alludes to a corruption allegation, that officer or lawyer could be on the receiving end of a criminal defamation claim. This does happen in practice in Thailand. And it obviously has a chilling effect on compliance investigations in Thailand as well. This makes corruption investigations in Thailand problematic. It also raises a public policy rationale – beyond free speech issues – for relaxing and reevaluating Thailand’s defamation laws.