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 Consequently, the Nova Scotia Government repealed the Cyber-Safety Act 2015 and then enacted the new law instead, i.e., the Intimate Images and Cyber Protection Act 2017, narrowing down the definition of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.
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.
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.