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Cyberbullying VS Defamation

Cyberbullying is repeatedly and intentionally harassment, mistreatment, or making fun of people through digital devices. This action occurs on social media that users can view, contribute to, or share contents.

One example of cyberbullying offense associated with suicide is Rehtaeh Parsons, a 17-year-old Canadian student, who was a victim of sexual violence. The offender published her pictures of being raped on the website. After that, Rehtaeh’s school friends brutally cyberbullied her by sending text messages requesting to have sex with her several times. Even though Rehtaeh’s family escaped from the community, people kept harassing her through the internet, which caused her a mood swing and led her to hang herself. Finally, there was no charge for the cyber-bully. In response to Parsons’ suicide, the Nova Scotia Government enacted Cyber-Safety Act 2015. However, the provision in the definition of cyberbullying terminology was broadly and ambiguously as it applies to every offense which beyond the law’s objective. Consequently, the Nova Scotia Government repealed the Cyber-Safety Act 2015 and then enacted the new law instead, i.e., the Intimate Images and Cyber Protection Act 2017, narrowing down the definition of cyberbullying and allowing victims to seek protection from cyberbullying and sue the offender.

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Under the Intimate Images and Cyber Protection Act 2017, cyberbullying requires to have an electronic communication, direct or indirect, causing or is likely to cause harm to another individual’s health or well-being where the person responsible for the communication maliciously intended to cause harm to another individual’s health or wellbeing or was reckless with regard to the risk of harm to another individual’s health or well-being.

Defamation offense as specified in Section 326 of the Thailand Penal Code, it is required to have the offender intending to impute the others, a third party as a receiver, and messages must damage others’ reputation or cause the others to be insulted or hated. If defamation is done by social media, it will be considered under Section 328 of the Penal Code, the offense of defamation will be considered as conducting defamation offence by advertising. This action can occur physically and online. There is no need to be recurring action, just intentionally imputing others to a third party only once is considered as defamation.

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Cyberbullying is similar to defamation in that it asserts a person’s facts with the intent to injure the other’s reputation and cause the person to be dishonored or hated. The difference is Cyberbullying can occur on a private forum without a third party as a receiver, the intent can be reckless with regard to the risk of harm to others, and the action is a variety of types. On the other hand, defamation must have a third party as a receiver, the intent to impute the others, and the only action is imputing.

In Thailand, the cases of cyberbullying require the element of defamation offense, allowing the victim to sue the cyber-bully in a criminal case. The victims cannot sue the offender if the cases happen on a private forum that has only sender and receiver because it lacks the element of defamation offense in which there is no third party as a receiver. Furthermore, if the action is not imputing the others or the intent of cyberbullying is reckless with regard to the risk of harm, the victim cannot sue the offenders because there is no cyberbullying offense in Thailand even if that action causes damage to the mentality and reputation of the victim as same as defamation. In summary, using the comparative law, the Penal Code, cannot cover to the extent of cyberbullying. All cases cannot be considered as offenses and applied to penalties under Section 326 and Section 328. Therefore, it is necessary to define a specific cyberbullying offense, the method for punishing offenders, and injury compensation for victims in which it can be specified in the Computer-Related Crime Act B.E. 2560 (2017). For this purpose, it should be specified covering the action on the private forums, all types of cyberbullying, and expanding the intention to cover negligence to reduce bullying behaviors and keep the bully at a consistently low level in Thailand.

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Author: Panisa Suwanmatajarn, Managing Partner.

Related Article(s)

Thailand – defamation and insult can be considered as cyberbullying   – The Legal Co., Ltd.

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Draft Act on Repealing the Act on Offences Caused by Check

The cabinet approved in principle the draft Act on Repealing the Act on Offences Caused by Check B.E. 2534 B.E. …. (“Act”) upon the Ministry of Justice proposal. The draft Act will be Thepassing to the Office of the council of State for further consideration and proceedings.

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In this regard, the draft Act  has been proposed  to be in accordance with the principle of enforcing the law for necessity, cancel or amend the law that is unnecessary or not suitable with the presence events, is considered obstacle to life or profession without delay for the benefit of  people and determine the criminal sanction primarily on serious offence according to Section 77 of Thailand Constitution. It is also for being in accordance with Clause 11 of the ICCPR stating that a person shall not be imprisoned for unable to perform according to the contract.

The Act will be expedient to the commercial bank in enforcing their policy to enhance the creditability of check through enforcement of customer screening policy without implementing of criminal sanction.

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This is to reduce enforcing criminal sanction to force performance from civil debtors and save the procedural budget on criminal justice processes including implement domestic law to be in accordance with the international principle and conventions where the authorized government unit approved such draft act.

This Act shall be enforced and implemented after 120 days of announcing on the government gazette has lapsed.

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Smart Contract on Blockchain

Smart Contract – Tool for Facilitating Business in this modern-day business, technology has been put to be used more and more, for instance a transnational trade and supply chain, removing the bank or financial institution of the picture.

The smart contract, one of the mentioned technologies, will facilitate the business operation because the seller will be able to deliver the goods in any way and the delivery information will be the smart contract conditions to launch the product to the buyer. Input of such information is also much convenient such as scan barcode, QR code, or intact ship to the product to let the smart contract recognize the payment condition is being fulfilled.

In comparison to the typical e-commerce transaction where the buyer buying product from the available service platform that the seller displays their products and services and the platform will hold on to the payment when there is transaction until delivery of product to the buyer then the money will go to seller. This typical e-commerce transaction still has the intermediary and involving of discretion to certain level unlike the smart contract that done and execute without any intermediary. Another example, an insurance business, as the nature of its operation is the fulfilment of contract conditions to be eligible to compensation, any occurrence of the agreed event and input of data into the smart contract system will trigger the payment of compensation agreed such as insurance of delay flight, where the flight timetable is in the computer system any delay from what schedule is, will trigger the compensation procedure to the insured or beneficiary without having to go through complaint process.

Unlike the centralised system that gather all data under one centre, blockchain is a decentralised information distribution network stored in the block and shared other users that can enter the block through input of password. The network will check for any input or change of information of the block and update that to the next block and chain the new and old one together ensuring it to be connected, shared and distributed to the network. Once the information is blocked together into chain, it is irreversible.

Blockchain is a network system that is an optional approach in doing business, non-application will render to non-benefit to business or at most can be used as irreversible recording system. However, without smart contract, there could be issues of time and parties making offer and acceptance as there is no human involving.

Blockchain is an applied technology that is an additional tool to boost a business, whereas smart contract is one of blockchain functions to execute according to the agreed clauses in the contract and fulfilment of the agreed clause will render to the predicted result either transfer of money or deliver of goods according to what parties agreed. Smart contracts boost the speed, efficiency and ensure accuracy according to the terms of the contract with absolute transparency, trust and security done through blockchain network. As such, it saves both time and expense.

Under the principle of law, a contract form when there is a proposal and acceptance of parties with the intention to create legal relation and be bound by the obligation arise of the agreed expression of intention where, in some agreements, certain form of proof of such agreement is required by th law. A smart contract is an electronic contract where parties create conditions or clauses set up through coding instead of paperwork and record of such electronic contract on the blockchain network system.

The parties to contract will set forth the conditions aim to achieve in advance and upon the completion of such aim the contract will automatically complete the process of transaction without any assist from any third party. The Thailand Civil and Commercial Code did not mention of the electronic contract form but under the Electronic Transaction Act recognised the online offer and acceptance done online including binding power, rights, duties, liabilities and obligation of engaging of online contact. With its latest amendment, the contract done on the information exchange machine with a person or machine-to-machine is legitimately recognised. Therefore, the smart contract setting with no human involving in the process done on the exchanging information machine to another machine is under the electronic transaction recognition.

Under the legal interpretation, the time of contract formation take effect when the information of the offer is being input into the network system of the receiver checked through timestamp appear on the transaction. As the contract is formed online, the place of the contract is hard to identify which affect the jurisdiction of competent court. The US court introduces the ‘Long Arm Jurisdiction’ for the court to have the competency upon perpetrator resides and operates outside the state where the place of cause of action is outside of the state. If the fact appears in accordance with minimum contact principle and relative considerations and  the perpetrator intents to be bound in such transaction done in the state and be benefit of such transaction within the state and regardless of whether the information in put is the information that the perpetrator  want to contact or exchange with others on the internet or not, all  these  will be considered under the ‘Long Arm Jurisdiction’ which should be reviewed along with Stare Decisis Principle. In addition, under the UNCITRAL, it indicates the place that the sender’s workplace and the receiver’s workplace is the formation of contract place.

Therefore, the competent court will be the premises local court of the sender’s or receiver’s workplace or the domicile of the sender or receiver in which Thai law has not yet introduced any legislation on such matter

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New Law Governing Platform Service Providers

On 1 June 2022, the Cabinet has in principle acknowledged the law governed and controlled the platform service providers.

Keys issues of this law are as follows:

  • The platform service providers who will be required to follow this law are the intermediary service providers, hosting service providers, online platform providers, very large online platform providers and gatekeeping platform providers. The service providers who will be excluded from this law will be such as the service providers who have transactions not more than 10,000 transactions per day, service providers who provide the services for limited groups of service users (services provided in internal organizations) and service providers who provide the services for only goods or services that they are the distributors or manufacturers.
  • Such service providers will need to follow the provisions of this law such as disclosing of transparent report and having system for users to contact with while having problem in using the platforms.
  • Such service providers (except intermediary service providers) will need to have methods or systems for notifying of any infringement or using data illegally including removal or block accession to illegal data.
  • Online platform providers and very large online platform providers will have duty to indicate measures to prevent infringement and damage on platform both on the parts of service providers and service users and the law also indicates liability in case of neglect in performing their duty causing infringement to be occurred.
  • Very large online platform providers will have the duty to appoint an outside specialist to assess risk of system and other risks which may be occurred while using platform as well as disclosing of result of testing of system and factors and grounds leading to offers for services to service users.
  • There is an accreditation of trusted whistle blower system governed by the relevant authority (i.e. Electronic Transactions Development Agency : ETDA). The authority will need to make and update the list of such whistle blower from time to time.
  • The agreement between the service providers and service users will need to be complied with those prescribed by the relevant authority otherwise it will be void.
  • The Trade Competition Committee will be the authority to indicate and announce the list of gatekeeping platform service providers.

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Amendment of Criminal Procedure Code on Hearing Proceedings

On January 4, 2022, the Cabinet has approved in principle a draft Act Amendment of the Criminal Procedure Code (No..) B.E… (“Draft Act”) in order to amend Section 172 paragraph five and adding paragraph six to such section.

The purpose of this Draft Act is to amend the Criminal Procedure Code to allow the court’s hearing proceedings and testimony taken place out of the court in a form of VDO conference proceedings in the event of public disaster or necessity for safety. It also includes the situation of coronavirus disease 2019 (Covid-19) pandemic.

This VDO conference proceedings can be conducted under consent of the defendant and the court deems appropriated. The proceedings must not cause damage or injustice to the defendant in accordance with the rules and procedures prescribed by the President of Supreme Court and it shall be deemed that such proceedings are considered and examined in the court room.

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Under the rules and procedures of the President of Supreme Court, sufficient collateral must be provided for opening trial and communication between the defendant and its lawyer is private. It is also required to consider regarding the person whom the laws treat under special protection or care.

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Board of Investment Actions according to Economic and Investment Stimulus Measures

On 10th May 2022, the Cabinet approved in principle a draft Regulation of Prime Minister Office on Setting up of Visa & Work Permit  Service Center (No. ..) B.E. …. and a draft Announcement of Board of Investment on Rules and Conditions for Special Non-Immigrant Visa (Long Term Resident Visa: LTR) and a draft Announcement of Board of Investment on Rules and Conditions for Special Non-Immigrant Visa (Smart Visa) No. .. B.E. …. as proposed by the Board of Investment.

Key summary of the above-mentioned draft rules and regulations are as follows:

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  • LTR visa holders and their dependents including foreign cinematographer staffs as proposed by the Creative Economy Agency are allowed to use the service of this visa and work permit service center. The Board of Investment will be in charge of this service center.
  • There are 4 types of foreigners who are eligible to apply for the LTR visa, i.e. wealthy global citizen, wealthy pensioner, work from Thailand professional and high skilled professional and their spouse and children.
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  • The applicant under the LTR visa is required to show a health insurance having coverage of not less than 50,000 USD and having period of coverage not less than 10 months or holding a Thai social security or money deposited in Thai or foreign account for not less than 12 months in the amount of not less than 100,000 USD. The applicant is also required to show a personal income at least such as average of 80,000 USD per year within 2 years. The employment or service contract with an entity in Thailand or overseas is required. The documents showing experiences of working in target industries no less than 5 years except the applicant who will work for educational institute or research or special coaching institute operated by Thai government or government authority or applicant who graduates in doctorate degree or equivalent.
  • The applicant who would like to apply for a Smart Visa is required to be a specialist on science and technology in the target industries certified by the Strategic Talent Center or related organizations. There is a direct investment or through an investment company in the business from the applicant not less than 20 million THB in the industry using technology base for its manufacturing or service.

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Business Incorporation and Relevant Registrations in Thailand

Setting up a company in Thailand requires at least 3 or more individuals to subscribe their shares at the incorporation stage. Then, such subscribers shall conduct a statutory meeting for a company establishment to appoint the director(s) of the company and hand over the business to the director(s). The director(s) shall call for shares subscription either in kind or in cash and register for incorporation within 3 months from the statutory meeting.

The company’s director(s) can be both Thai and foreigner. This does not affect the ownership of shares in the company or types of the company whether it is a Thai company or a foreign company under Thai law. However, in the event that the director(s) is a foreigner and receive salary from the company, this shall be considered as an employee who is required to apply for a work permit in order to work in Thailand legally.

Once the company has already been established and if the company has an employee, social security registration is required. In addition, if the company has its income more than 1,800,000 baht per year, the company is required to register for value added tax (VAT) number.

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Last but not least, other registrations or procedures may be required for any other specific types of business. For example, specific licenses are required for operating the restaurant business, securities business, tourism business, etc. The business owners need to seek consultation and check the relevant laws whether the business requires any other specific registrations or procedures.

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Draft Ministerial Regulation Designating Government Agencies Being Able to Request an Execution Officer to Conduct Administrative Enforcement (No. ..) B.E. ….

The Cabinet, on 19 April 2022, approved in principle the draft Ministerial Regulation Designating Government Agencies Being Able to Request an Execution Officer to Conduct Administrative Enforcement (No. ..) B.E. …. (“Ministerial Regulation”) as proposed by the Ministry of Finance.

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The main object of this Ministerial Regulation is to prescribe that 16 agencies, i.e. the Bank of Thailand (BOT), Government Pension Fund, National Savings Fund, Life Insurance Fund, General Insurance Fund, Neighbouring Countries Economic Development Cooperation Agency (NEDA), Bank for Agriculture and Agricultural Cooperatives, Export-Import Bank of Thailand (EXIM Bank), Thai Credit Guarantee Corporation, Government Housing Bank (GH Bank), Government Lottery Office, Tobacco Authority of Thailand (TOAT), Securities and Exchange Commission (SEC), Deposit Protection Agency (DPA), Office of Insurance Commission (OIC) and Student Loan Fund, are able to request an execution officer to conduct on administrative enforcement under the law regarding administrative procedures.

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Under the Administrative Procedure Act B.E. 2539 (1996) (“Act”), if the government agencies, in the case of force for payment and the administrative order requesting for the payment becomes final, wish the execution officer under the Legal Execution Department to enforce such administrative order, the request shall be submitted unilaterally to the court within 10 years from the date that the administrative order to settle the payment becomes final.

The court will issue a writ of execution to enforce such administrative order by specifying the amount that the person subject to the administrative enforcement has not paid according to the administrative order, regardless of whether such government agencies implement the administrative enforcement or carry out the administrative enforcement but have not receive payment or receive some portion of the same.

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The Ministry of Finance has specified the abovementioned 16 government agencies under the supervision of the Ministry of Finance in order to effectively implement the enforcement of administrative order to settle the payment.

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Draft Ministerial Regulation Stipulating Rules, Procedures, Durations and Rates of Compensation for Elder Benefits during the Reduction of Rate of Contribution Period (No. ..) B.E. ….

The Cabinet, on 5 April 2022, approved in principle of the Draft Ministerial Regulation Stipulating Rules, Procedures, Durations and Rates of Compensation for Elder Benefits during the Reduction of Rate of contribution Period (No. ..) B.E. …. (“Ministerial Regulation”) as proposed by the Ministry of Labor.

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Due to the 3-month reduction of contribution rate measure causing some insurers receive a reduced old age pension based on the amount of contribution into the fund, the Ministry of Labor then proposed for enforcing of the Ministerial Regulation to help such insurers. he main points of this Ministerial Regulation are as follows:

  • This Ministerial Regulation shall be effective from 1 May 2022 onwards.
  • The payment of old age pension to insurers who contribute to the fund during the reduction of contribution rate from 1 May 2022 – 31 July 2022 shall be calculated from additional 2.95% of wages of insurers from 1 May 2022 – 31 July 2022 in order to additionally pay the old age pension from the rate stipulated in Article 6 (2) of the Ministerial Regulations Stipulating Rules, Procedures, Durations and Rates of Compensation for Elder Benefits B.E. 2550 (2007).
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The Ministry of Labor has issued the measures to alleviate suffering of insurers affected during the reduction of contribution rate causing some insurers receive less old age pension. The old age pension shall be paid to the insurers who contributed   into the fund during the reduction of the contribution rate, from May – July 2022, calculated from the additional 2.95% of the insurers’ wages. Such increased payment of pension is from budget of the Social Security Fund.

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Updated Rate of Contribution to the Social Security Fund

The Cabinet, on 5 April 2022, approved in principle of the draft Ministerial Regulation Stipulating the Rate of Contribution to the Social Security Fund B.E. …. (“Ministerial Regulation”) as proposed by the Ministry of Labor in order to make an amendment to the Ministerial Regulation Stipulating the Rate of Contribution to the Social Security Fund B.E. 2564 (2021). The main points of this Ministerial Regulation are as follows:

  • Repealing the Ministerial Regulation Stipulating the Rate of Contribution to the Social Security Fund B.E. 2564.
  • From 1 May – 31 July 2022, the government, employers, and insurers under Section 33 of the Social Security Act B.E. 2533 (1990) shall contribute 0.9% of the insurers’ wage rate for compensation in the event of injury or sickness, disability, death, and childbirth. For the compensation in case of child support and old age, the employers and insurers shall contribute 0.05% of the insurers’ wage rates and the government shall contribute 1.6% of the insurers’ wage rates. For the compensation in case of unemployment, the employers and insurers, shall contribute 0.05% of the insurers’ wage rates and the government shall contribute 0.25% of the insurers’ wage rates.
  • From 1 August 2022 onwards, the government, employers and insurers under Section 33 of the Social Security Act B.E. 2533 shall contribute 1.5% of the insurers’ wage rates to the fund for compensation for injury or sickness, disability, death, and childbirth. For compensation in case of child support and old age, the employers and insurers shall contribute 3% of the insurers’ wage rates and the government shall contribute 1% of the insurers’ wage rates. For the compensation in case of unemployment, the employers and the insurers shall contribute 0.5% of the insurers’ wage rates and the government shall contribute 0.25% of the insurers’ wage rates.
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The reduction in employers and insurers contribution rates has resulted in a lower contribution that the employers and insurers is required to contribute to the Social Security Fund from 5% to 1% of the insurers’ wage rates. In addition, the insurers under Section 39 of the Social Security Act B.E. 2533 (1990) also contribute less to the Social Security Fund, from the rate of 432 baht per month to the rate of 91 baht per month.