Jun 22, 2021 | News, Publications
The Thai authorities should immediately reform laws, policies and practices that have led to increasing violations of human rights in the digital sphere, the ICJ said in a new report launched today.
The 75-page report, Dictating the Internet: Curtailing Free Expression and Information Online in Thailand, documents a range of laws that does not comply with international human rights law and standards. These laws contain vague and overbroad provisions, wrongly criminalize free expression or prescribe disproportionately harsh penalties, and are applied without independent oversight mechanisms.
These arbitrary restrictions have intensified in response to the COVID-19 pandemic and pro-democracy protests.
“The Thai authorities have continued their systematic abuse of existing and new deficient laws to curtail not only the right to freedom of expression, opinion and information online, but also the rights to peaceful assembly, health and other rights,” said Sam Zarifi, ICJ’s Secretary General.
The Thai authorities have also pressured and co-opted big technological companies to improperly restrict or block content on their platforms, through court-enforced demands and the filing of criminal complaints for failing to comply.
The report further documents how the Thai authorities have failed to adequately protect individuals against the human rights abuses of private actors, who include companies harassing its critics through legal processes and perpetrators of online speech inciting discrimination, hostility or violence.
The report provides specific recommendations to the Thai authorities and technological companies in the communications sector to safeguard in law and practice the rights to expression, opinion and information online as well as offline. These recommendations call for the authorities to, among other recommendations:
- Repeal or substantially amend criminal law provisions that criminalize or unduly restrict human rights online, and review existing laws or develop legislation to protect against SLAPP lawsuits and the incitement of discrimination, hostility or violence;
- Cease harassment and persecution of all individuals for merely exercising their human rights online;
- Refrain from future charges and drop all existing charges against individuals and social media companies facing prosecution for alleged violations of non-human rights compliant laws, and immediately release all held in pre-trial detention or imprisoned on conviction for such cases; and
- Refrain from restricting or blocking online content unless the decision to block has been undertaken following a full analysis applying international human rights law and standards, and authorized pursuant to an order by an independent and impartial judicial authority.
“The Thai authorities must act urgently to stem this deteriorating trend of human rights violations and abuses in the digital space, by repealing or substantially amending its laws, policies and practices in line with Thailand’s international legal obligations,” added Zarifi.
The report follows on from the ICJ’s December 2019 regional report entitled Dictating the Internet: Curtailing Free Expression, Opinion and Information Online in Southeast Asia assessing non-human rights compliant legal frameworks and case studies across Southeast Asia, including Thailand.
Report Launch
The report will be launched on 22 June 2021. The launch includes a panel discussion, which draws together human rights defenders, diplomats, journalists, lawyers and civil society to discuss the increasing attacks on freedom of expression and information online in Thailand through non-human rights compliant laws and practices.
The discussion will include as panelists:
- Sam Zarifi, Secretary General, International Commission of Jurists;
- Poonsuk Poonsukcharoen, Thai Lawyers for Human Rights (TLHR); and
- Chavarong Limpattamapanee, Chairman, National Press Council, Thailand.
Download
The full report is available in English here and in Thai here. The executive summary of the report is available in English and Thai. (PDF)
Contact
Sam Zarifi, ICJ Secretary General, e: asiapacific@icj.org, t: +66-62-702-6369
See also
ICJ, ‘Southeast Asia: ICJ launches report on increasing restrictions on online speech’, 11 December 2019
ICJ, ‘Vietnam: authorities must act to safeguard rights online and end harassment of those expressing themselves – ICJ new report’, 9 December 2020
May 9, 2021 | News
Southeast Asian governments must diminish the misuse of lawsuits to harass and silence civil society, so-called SLAPP suites, said more than 70 international experts, judges, public prosecutors, lawyers, members of civil society organizations, academics, and members of executive and State institutions from Indonesia, Malaysia, the Philippines, and Thailand at a discussion convened by the ICJ and partners on 7 and 8 May.
The participants at the regional dialogue on “The Role of Administration of Judicial Authorities and Legislators in the Fight against Strategic Lawsuits Against Public Participation (SLAPPs) in Southeast Asia” addressed the proliferation of SLAPP suits, which SLAPP suits are undertaken with the principal objective of curtailing or deterring public criticism or opposition to certain activities by the entity initiating the legal action. SLAPP lawsuits typically have a “chilling effect” on the exercise of freedom of expression and other human rights and fundamental freedoms, including freedom of opinion and expression (article 19 of the International Covenant on Civil and Political Rights); freedom of peaceful assembly (article 21); and the right to take part in the conduct of public affairs (article 25).
Irene Khan, Special Rapporteur on the promotion and protection of freedom of opinion and expression, stated that it is necessary to bring exiting laws in compliance with international law and standards, including with the principles of legality, proportionate, necessity, legitimate purpose, and non-discrimination, and called for defamation laws to be decriminalized.
Prof. Surya Deva, Vice-Chairperson, the Working Group on the issue of human rights and transnational corporations and other business enterprises, referred to several anti-SLAPP provisions that, in his view, are inadequate, including section 161/1 and 165/2 of Thailand’s Criminal Procedure Code. He pointed out that while the legal reform needed, States also need to train relevant stakeholders who will make use of these. Internal or soft guidance can also be a helpful guideline on how to exercise discretion, and more resources should be allocated to raise awareness.
Several participants, while noting their duties to protect rights to access to justice and the power imbalance between the parties in SLAPP lawsuits, called for a robust legal frameworks and policies that prevent the filing SLAPPs in the first place and allow relevant authorities to identify, call out and dismiss them as soon as they are filed.
In the jurisdictions where such mechanisms exist, participants highlighted the need to address certain gaps to allow authorities to promptly and effectively exercise their power, and the importance of guidelines that can guide the relevant authorities on how to handle and proceed with SLAPPs in a coordinated effort to raise awareness among justice sector actors on this topic.
In the absence of a specific Anti-SLAPP legislation, participants also shared their experience using existing tools in their domestic laws as a basis in combating SLAPPs, including several provisions of the constitutions, other early dismissal mechanism provided in procedural laws, provisions under international laws, and encouraged their peers to think out of the box.
Reforming individual causes of action that commonly form the basis of SLAPPs, such as defamation, to ensure their compliance with international law and standards were also discussed by participants as another approach that the governments should consider, in combination with other measures.
Remedies for persons negatively affected by SLAPP lawsuits were encouraged.
The Workshop was conducted in collaboration with Business & Human Rights Resource Centre (BHRRC); Philippine Judicial Academy; the Supreme Court of the Republic of the Philippines; Lembaga Kajian dan Advokasi Independensi Peradilan (Indonesian Institute for Independent Judiciary or LeiP); Human Rights Commission of Malaysia (SUHAKAM) and AmerBON Advocates.
The speakers at the workshop were: representatives of all partner organizations; Nikhil Dutta, Global Programs Legal Advisor of the International Center for Not-for-Profit Law (ICNL); Joel Hernández García, Inter-American Commission on Human Rights’ Rapporteur on the Rights of Human Rights Defenders and Justice Operators; Irene Khan, Special Rapporteur on the promotion and protection of freedom of opinion and expression; and Prof. Surya Deva, Vice-Chairperson, the Working Group on the issue of human rights and transnational corporations and other business enterprises.
Apr 2, 2021 | News
The Thai authorities’ adoption of a draft law to regulate non-profit groups would strike a severe blow to human rights in Thailand, several international organizations said today. The bill is the latest effort by the Thai government to pass repressive legislation to muzzle civil society groups and non-governmental organizations (NGOs).
The “Draft Act on the Operations of Not-for-Profit Organizations” contains provisions that would have a deeply damaging impact on those joining together to advocate for human rights in the country, in violation of their right to freedom of association and other rights. The Thai government provided a perfunctory and inadequate consultation process for the bill. Because of fundamental problems in the draft law, the authorities should withdraw the draft entirely and ensure that any future law regulating NGOs strictly adheres to international human rights law and standards, the organizations said.
“This draft law poses an existential threat to both established human rights organizations and grassroots community groups alike. If enacted, this law would strike a severe blow to human rights by giving the government the arbitrary power to ban groups and criminalize individuals it doesn’t like,” said Maria Chin Abdullah, member of ASEAN Parliamentarians for Human Rights (APHR) and a Malaysian Member of Parliament (MP).
“This draft blatantly breaches Thailand’s own constitution and its human rights obligations. A thriving, independent and free civil society is an essential component of a rights-respecting, open society. The authorities should withdraw this deeply flawed draft and go back to the drawing board,” said Brad Adams, Director of Human Rights Watch’s Asia Division.
Arbitrary and vaguely-defined powers
According to the Draft Act (in Section 3), the government would have wide discretion as to which organizations will be exempted from the application of the law.
The Draft Act (in Section 4) also uses an overbroad definition of not-for-profit organizations (NPO), which has left it open to abusive and arbitrary application by the authorities.
The broad terms of the Draft Act would allow unequal treatment of certain disfavoured groups and carry dire consequences for associations critical of the government, with little scope to legally challenge government decisions. Groups as varied as academic institutions, community groups, sports associations, art galleries and ad hoc disaster relief collectives could be deemed to be NPOs and therefore be subject to the law’s mandatory registration requirement and potential criminal prosecution. The vague and overbroad definition of ‘not-for-profit organizations’ amounts to a violation of the “legality” principle, which requires any restriction to freedom of association and other fundamental freedoms be clearly “prescribed by law”.
Registered and unregistered groups alike must be allowed to function freely and be able to enjoy the right to freedom of association on equal terms. In order to enable individuals to exercise their right to freedom of association, States need to provide a simple, accessible, non-burdensome and non-discriminatory notification process for organizations to obtain their registration and must not require the authorities’ prior authorization.
“The draft law’s broad terms could be applied against virtually any group, no matter how small or informal,” said David Diaz-Jogeix, Senior Director of Programmes at ARTICLE 19. “If passed in its current form, the draft law will likely cause entire sectors of Thai civil society to collapse or take their activities underground.”
Excessive punishments
“Those found in breach of this law’s many faulty provisions risk lengthy prison sentences. Targetted NGOs could have their very existence extinguished at the whim of governmental authorities – enabling the silencing of critical and independent voices in Thailand,” said Ian Seiderman, Legal and Policy Director at the International Commission of Jurists (ICJ).
By making the registration of an NPO mandatory (in Section 5) and rendering any unregistered group illegal, the Draft Act would violate the right to freedom of association and severely impede the work of groups that defend and promote human rights.
Notably, under the proposed law (in Section 10), anyone found to belong to an unregistered association that operates within Thailand could be jailed for up to five years, fined up to 100,000 THB (approx. 3,200 USD), or both. This would effectively criminalize people solely for their peaceful exercise of the right to freedom of association.
“Paranoia” of foreign funding
“Around the world, bogus claims regarding foreign funding for NGOs are constantly used by repressive governments to distract from their own human rights record and to stigmatize and fuel paranoia regarding those who speak truth to power – often simply because they are critical of the government,” said Shamini Darshni Kaliemuthu, FORUM-ASIA’s Executive Director. “Now Thailand seems to want to follow suit, adding itself to an unwelcome list of rights-abusing governments trying to control or severely limit NGO funding.”
The Draft Act (in Section 6) places discriminatory restrictions on organizations that receive foreign funding. Authorities have the sole discretion to determine which activities may be carried out using funds from foreign or international sources, leaving ample room for abuse.
Moreover, the Draft Act states as a rationale for enacting the law: “several [NPOs] accepted money [from foreign sources], and used them to fund activities that may affect the relationship between the Kingdom of Thailand and its neighboring countries, or public order within the Kingdom.” This justification stigmatizes organizations that use foreign funding by equating their objectives to those of “foreign agents”. The government has failed to recognize the legitimate work carried out by organizations and their contribution to the rule of law and development of the country, merely because they are funded by foreign sources.
Privacy invaded and censorship on expression
“In addition to the ongoing criminalization of online expression in Thailand, the Draft Act gives sweeping, unchecked and discretionary administrative powers to the authorities to further obstruct the work of human rights organizations,” said Emerlynne Gil, Amnesty International’s Deputy Regional Director for Research.
The Draft Act not only confers the power to the authorities to closely scrutinize organizations, it also contains provisions to subject NPOs’ offices and members to invasive surveillance and searches without judicial oversight. The Draft Act (in Section 6) allows the authorities to enter civil society organizations’ offices and make copies of their electronic communications traffic data without prior notice or a court warrant. This is a serious threat to the right to privacy and to freely express the ideas and opinions of its members.
Without prior notice or a valid warrant, this arbitrary power clearly violates domestic and international standards on due process of law.
“In going down this route, Thailand stands to poison the space for civil society. The passage of this law would severely undercut Thailand’s claims to be a rights-respecting country with a flourishing civil society,” said David Kode, Advocacy and Campaigns Lead at CIVICUS.
Contact
Ian Seiderman, ICJ Legal and Policy Director, ian.seiderman(a)icj.org, +41 229793800
Download
The statement with additional background information and list of organizations in English and Thai.
Submissions
Amnesty International
Article 19
Human Rights Watch
International Commission of Jurists – English and Thai
Mar 31, 2021 | News
Today, the ICJ submitted recommendations to Thailand’s Office of the Council of State concerning the Draft Act on the Operation of Not-for-Profit Organizations B.E. … (‘Draft Act’), which is scheduled for public consultation between 12 and 31 March 2021.
The ICJ urged that the Draft Act be repealed in its entirety or substantially revised in order to ensure compliance with Thailand’s international legal obligations.
The ICJ is concerned that the law, if adopted, would pose onerous and unwarranted obstacles to many civil society organizations in Thailand, including human rights NGOs, in carrying out their work. In its submission, the ICJ underscores the imprecise and overbroad language of the draft law, which would allow for abusive and arbitrary application by the Thai authorities on “Not-for-Profit Organizations” (NPOs). In particular, it provides for discriminatory restrictions on organizations that receive foreign funding.
“It is well-established in international law and standards that any registration of NPOs should be voluntary and that no law should outlaw or delegitimize activities in defence of human rights on account of the origin of funding,” said Ian Seiderman, ICJ’s Legal and Policy Director.
Violators of the Draft Act would risk having their registration revoked. The Draft Act also imposes liability of criminal punishment on those who operate without registration with imprisonment not exceeding five years or fined not exceeding 100,000 THB (approx. 3,200 USD), or both.
“In cases of registration revocation, the legal recourse available for NPOs to challenge such decisions involves lengthy and burdensome administrative and judicial proceedings, which would normally take years to reach a conclusion. Proceedings of this kind will be untenable for some organizations and will deal a fatal blow to the essential work of many human rights defenders,” said Ian Seiderman.
The Draft Act also provides sweeping powers to government authorities to monitor activities, search and seize electronic data of NPOs without any court warrant, in violation of the rights to privacy.
Background
Thailand is a State party to the International Covenant on Civil and Political Rights (ICCPR), which requires States to respect and protect, inter alia, the right to freedom of association, expression, peaceful assembly, the right to take part in the conduct of public affairs, the right to privacy and the right to an effective remedy. Thailand may impose limitations on NPOs only in narrow circumstances and subject to strict conditions as set out in the ICCPR.
On 23 February 2021, Thai Cabinet approved in principle the Office of the Council of State’s proposal to enact a law aims to provide oversight on NPOs’ operations.
The draft law is currently under consideration of the Council of State for legal review. Public consultation is currently carried out by the Office, only via their online platform. Members of the public were expected to have registered any concerns about the Draft Act through the website of the Office, by post or by email, between 12 to 31 March 2021 – a considerably tight period of time.
The draft law will then be resubmitted to the Cabinet, then presented to the Parliament.
Download
Recommendations in English and Thai (PDF)
Feb 17, 2021 | News, Non-legal submissions
In a joint letter to the President of the Lawyers Council of Thailand, the ICJ and Lawyers for Lawyers raised concerns on the disbarment proceeding against Mr. Anon Nampha, a lawyer and human rights defender. The organisations believe that the proceedings unduly interfere in his work as a lawyer and serves to impair the exercise of his human rights, including the right to freedom of expression.
Dear President of the Lawyers Council of Thailand,
Re: Disbarment Proceedings Against Mr. Anon Nampha
Lawyers for Lawyers is an independent and non-political foundation that seeks to promote the proper functioning of the rule of law by pursuing freedom and independence of the legal profession.
International Commission of Jurists (ICJ), a global non-governmental organization composed of 60 eminent judges and lawyers, works to advance understanding and respect for rule of law as well as the legal protection of human rights throughout the world.
We write to your office concerning the disbarment proceeding against Mr. Anon Nampha, a lawyer and human rights defender, that is taking place before the Investigative Committee that was established by the Committee on Professional Ethics of the Lawyers Council of Thailand during the Meeting No. 1/2564 on 13 January 2021. We are concerned that the proceeding unduly interferes in his work as lawyer, including in representation of clients, and serves to impair the exercise of his human rights, including the right to freedom of expression.
According to our information, we understand that the proceeding against lawyer Anon Nampha is related to a complaint motion filed to the Lawyers Council of Thailand on 7 August 2020 by Mr. Aphiwat Khanthong, Assistant Minister in the Office of the Prime Minister, claiming to be acting in his capacity as a private attorney at Or Amporn Na Takua Tung and Friends Law Office. Mr. Aphiwat Khanthong alleged that lawyer Anon Nampha’s behaviour violated the Lawyers Council of Thailand’s disciplinary rules as, he claims, it would “incite, intend to cause unrest, distort information and insult on the monarchy”. The alleged speech in question apparently called for reform of the monarchy, during a Harry Potter-themed protest at the Democracy Monument on Ratchadamnoen Avenue on 3 August 2020.
Under international law and standards, lawyers, like other individuals, enjoy the right to freedom of expression, belief, association and assembly. A lawyer should be able to draw the public’s attention to issues relating to public affairs in their official capacity as well as in their private capacity. Suspensions or revocations of lawyer licenses as a result of exercise of their legitimate rights and freedoms do not only impact on the exercise of the rights of the lawyers, but also on the rights of their clients to be represented by the lawyer of their choosing.
Download the full letter in English and Thai.
