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Turning the Tide on Criminal Libel
A reason to celebrate on World Press Freedom Day
David Kootnikoff (kaspian)     Print Article 
Published 2006-05-03 01:32 (KST)   
"We must not confuse dissent with disloyalty"
- Edward R. Murrow

The legendary American broadcast journalist Edward R. Murrow -- the subject of the recent Oscar winning film "Good Night, and Good Luck" -- knew a bully when he saw one. He spoke those words in 1954 at a time when his country's civil liberties were being threatened by Senator Joseph McCarthy's fear-mongering pursuit of communists.

Murrow recognized that a loyal opposition is needed for any democratic society to flourish and that the media in its role as a watchdog should fulfill this function. However, when it is denied a voice or subdued through fear, as was the case with McCarthyism or more recently, the invasion of Iraq, the very values it represents come under attack.

While 1950s America may seem like a far cry from Southeast Asia in 2006, there are significant similarities. But where the specter of communism was once raised to clamp down on free speech, in Asia criminal defamation laws have been used with alarming regularity.

Originally designed as a legal remedy to replace dueling in settling insults, criminal libel eventually became a method for controlling populations during eras when sedition and revolution were the fears of the day. In parts of Asia, journalists and individuals from the public at large have been routinely threatened with prison and huge cash penalties if they target the wrong people or issue.

However, things may be changing. Recent developments in Cambodia, Indonesia and Thailand are giving journalists a reason to celebrate the same values Murrow once defended on World Press Freedom Day -- May 3.

Cambodia's Prime Minister Hun Sen announced April 21 that his cabinet has moved to abolish the country's controversial criminal defamation law, while the judiciaries in Indonesia and Thailand recently handed down two landmark decisions that could bolster the role journalists play in strengthening their civil societies.

In both cases criminal libel suits filed by wealthy plaintiffs against individuals and media organizations were employed. The first involved the chief editor of Indonesia's Tempo magazine, Bambang Harymurti. He was acquitted of criminal libel charges by Indonesia's Supreme Court on Feb. 9, overturning a lower court's decision that he serve one year in prison for libeling Tomy Winata, a wealthy businessman. Justice Djoko Sarwono said the decision was made in recognition of the important role the press plays defending democracy and keeping society informed.

The decision was announced on Indonesia's National Press Day, "which was so appropriate," said Yuli Ismartono, editor-in-chief of
AsiaViews and executive editor of Tempo. "More than a victory for us, it is a victory for press freedom in Indonesia, and beyond that, for democracy," she added. "Hopefully, the courts will now follow the example of using the Press Law, instead of the Criminal Code, when handling media cases. This is a very encouraging sign that reforms are working in Indonesia."

Robert Balin, a media lawyer from the U.S., was part of a team of international lawyers from three continents that assisted with the defense in the Thai libel suit. They were responsible for signing up over 1,000 international supporters, including Noam Chomsky, media expert Robert McChesney, Chilean playwright Ariel Dorfman and Filipina journalist Sheila Coronel, winner of the 2003 Magsaysay Award.

Speaking recently at the University of Hong Kong, Balin acknowledged the success of the case in increasing protection for the press not only in Thailand, but throughout the region.

The case involved media and telecommunications giant Shin Corp, founded in 1983 by former Thai Prime Minister Thaksin Shinawatra. Shin Corp eventually grew to become Thailand's dominant mobile phone company, the country's only satellite communications provider, its biggest Internet provider and also owner of the only independent, privately held television station.

In October 2003, it filed both criminal and civil defamation suits against Supinya Klangnarong, secretary-general of the Campaign for Popular Media Reform, after she made statements in the Thai Post suggesting Thaksin's government had helped Shin Corp profit through connections in his Thai Rak Thai party. Shin Corp claimed these statements were libelous and had damaged the company's reputation.

While Thaksin was no longer the owner at the time, members of his family were. The case was seen widely as yet another attempt by the prime minister to target the media and use libel laws to silence those criticizing or scrutinizing his administration and policies.

From 2001, when the Thaksin administration took power, it gained a reputation for going after critics, particularly those in the media. In 2005, Thaksin filed 6 different civil and criminal suits against outspoken journalist Sondhi Limthongkul and in 2003 the London-based Economist magazine was targeted. Thai journalists operate in a climate of fear and during 2005 there were some 50 libel cases filed against them, marking a two-fold increase in such suits over the previous year.

Shin Corp was seeking the 2 year imprisonment of Supinya and the executives (the publisher, editor, and one board member) of the Thai Post, as well as US$10.5 million. The average yearly income in Thailand is US$8,300.

In January 2006, Thaksin's family sold their controlling shares in Shin Corp to Singapore's Temasek Holdings. Soon after, the company approached Supinya to settle out of court, but was refused.

"I would agree to settle the case if Shin Corp made an announcement that it embraces press freedom," said Supinya.

She wanted the case to set a precedent and was willing to take an enormous risk to beat the charges.

She wasn't disappointed. On March 15, the court acquitted the defendants, ruling that Supinya had acted in good faith and in the public interest, and that the Thai Post was merely doing its job by publishing the comments.

Balin noted that the high level of publicity and the international attention the case received were significant factors for the ruling, but it is also likely that Thaksin's relentless attacks on the media had finally gone too far.

Balin did stress that it was a matter of balance in determining how much outside pressure to exert on domestic courts. Judges, including those on the U.S. Supreme Court, do not take kindly to being told what to do by foreign legal experts.

Nevertheless, Balin also stressed that there are international standards -- particularly Article 19 of the Universal Declaration of Human Rights, of which Thailand is a signatory -- that must be adhered to and that the court's decision was the right one for Thailand. Article 19 reads:
Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.
When there is a willingness to prosecute libel laws, a well documented "libel chill" follows. In Singapore, comment is usually permitted about other countries, but not tolerated about local issues. On several occasions foreign publications that reported critically of the Singaporean government have been charged with criminal defamation, with large monetary damages attached. Last year, the Economist paid US$230,000 in damages to Prime Minister Lee Hsien Loong and his father Lee Kuan Yew after noting a "whiff of nepotism" in the appointment of the prime minister's wife -- Ho Ching -- as chief of the government investment company, Temasek Holdings.

In Hong Kong, despite the much heralded "one country, two systems" model, the press is notoriously tame when addressing anything mainland authorities deem sensitive, such as Taiwan or universal suffrage. University of Hong Kong Law Professor Anne Cheung has written in her book "Self-Censorship and the Struggle for Press Freedom in Hong Kong":
"What may signal a completion of the socialization process is when one no longer hears any stories about self-censorship in Hong Kong."
Indeed, the topic is seldom raised in the territory's press.

Ending criminal libel is only one step towards protecting press freedoms. In many part of the world, civil libel is also being abused to silence dissent. Media watchdog Reporters Without Borders has called the misuse of libel to silence the media a clear violation of the right to free expression and to information.

In the meantime, one thing remains clear -- as restrictions on the press are loosened in Southeast Asia, the entire region will benefit. As Balin said, "Good journalism makes for good law."
©2006 OhmyNews
Other articles by reporter David Kootnikoff

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