Bangkok Bugle writes:

It may surprise you but I cannot see many differences between Lèse-majesté (as it relates to publishing) in Thailand and the laws of libel and defamation in other parts of the world.

Take the United Kingdom as an example. There the laws of defamation state that in order for defamation to occur a publisher has to:
  • Expose someone to hatred, ridicule or contempt;
  • Cause someone to be shunned or avoided;
  • Lower that person in the estimation of other right-thinking people;
  • Cause a loss of business, trade, rank or professional standing.
Under the UK’s libel laws there is also a section called Sedition which, amongst other things, covers damage caused to the Sovereign and the Royal Family. In that sense Thailand is no different to the UK, and there are many countries around the world that enforce similar laws.
Some might argue what has been published recently can be deemed fair comment, but when that comment is damaging I think those who are damaged have every right to take action.

In order to avoid action being taken publishers need to ensure what they publish is factually correct. Looking at the recent case of The Economist where much of what was written was unsubstantiated opinion, rumours and allegations that were not supported with hard evidence. That’s what caused two editions in the last two months to be withheld from circulation. That decision was taken by the Thai distributors of the magazine because dissemination of Lèse-majesté content is also deemed an offence.

Stick to facts and you’ll be fine. If a story is likely to cause damage and isn’t factually correct then it’s likely going to run into problems – not just in Thailand but anywhere in the world.
BP: First, in Thailand, truth and fair comment are defences for defamation law. Thailand has a code law system so if one was to rely on fair comment and truth as defences one would need to point to section of law which recongizes that defence. There are none for lese majeste. In fact, Streckfuss provides a Supreme Court decision stating that fair comment is not a defence – can’t remember his wording in his dissertation (don’t normally have such disserations handy) on whether he quotes from a Court decision when he states truth is not a defence (see this post with references), but without a clear statutory defence it  For example, in the UK, on the Duchess of York:
Prince Andrew and Sarah Ferguson finally agreed to separate in January 1992. In August 1992, surreptitiously taken photographs of John Bryan, an American financial manager — in the act of sucking on the toes of a topless Sarah — were published in the British tabloid newspaper The Daily Mirror.

BP: Could such images be published in Thailand? Or could one even mention there were such images (still or moving)? In the UK, with its strict defamation laws, one can still see commentary and factual evidence (ie photos) about the activities of the members of the Royal Family. Is the reason that similar commentary or factual evidence has not appeared in Thailand because members of the Thai Royal Family have never done anything like the UK royals or because publishing such material would result in a lese majeste case? This is a rhetorical question as well if, hypothetically, there were such images, linking to them would constitute lese majeste even if the images in question were not in dispute.
Second, the lese majeste cases brought recently have not been brought by those who were allegedly damaged. The cases are brought by a third party. Does a third party in the UK have standing to bring such cases?
Third, lese majeste is a criminal offence, defamation in the UK is a civil case only.
Fourth, since we are on the topic there is another defence in the UK to defamation and that is called qualified privilege – more a public interest defence. A recent House of Lords decision (decision available here) and commentary by The Times here as excerpted below:
The law lords, Britain’s top judges, said that the media was entitled to publish defamatory allegations as part of its duty of neutral reporting of news, or if it believed them to be of substance and they raised matters of public interest.
The ruling came in an appeal by the Wall Street Journal Europe against a High Court decision, backed by the Court of Appeal, that it should pay £40,000 damages to a billionaire Saudi car dealer, Mohammed Jameel, whose family owns Harwell Motors in Oxford.
The story, published in February 2002, said that bank accounts associated with a number of prominent Saudi citizens, including Mr Jameel’s family and its businesses, had been monitored by Saudi authorities at the request of US authorities to ensure no money was provided intentionally or knowingly to support terrorists.
Lord Hoffman, giving the lead judgment, said that the article was a perfect example of journalism for which the public interest defence should be available.
It was for judges to apply the public interest test but that publication easily passed that test, he said. Its thrust was to inform the public that the Saudis were cooperating with the US Treasury and monitoring accounts. “It was a serious contribution in measured tone to a subject of very considerable importance.”
It could not be proved true because the existence of covert surveillance would be impossible to prove by evidence in open court. But that did not mean it did not happen.
The newspaper was entitled to report even serious defamations against individuals, so long as they “made a real contribution to the public interest element in the article“.
The ruling also said that judges, with “leisure and hindsight” should not second-guess editorial decisions made in busy newsrooms.
The key test was whether a media organisation or newspaper acted fairly and responsibly in gathering and publishing the information, the judges said.
If the reporter and editor did so, and the information was of public importance, then the fact that it contained relevant but defamatory allegations against prominent people would not permit them to recover libel damages.
Baroness Hale of Richmond in her judgment said: “We need more such serious journalism in this country and our defamation law should encourage rather than discourage it.”
BP: The Economist has lawyers and BP doesn’t know whether their articles were run by their lawyers before publication, but BP has been told that for another publication they have their lawyer check the article. People will have to make their own views on whether the content of the The Economist would meet the UK public interest defence.
“Speaking the Unspeakable: Lèse-Majesté and the Monarchy in Thailand” By David Streckfuss, University of Wisconsin-Madison and Thanapol Eawsakul, Editor of Fah Diew Kan / SameSky. Available from here.