Thesis

Should Thai law protect an individual from being insulted

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Awarding institution
  • University of Strathclyde
Date of award
  • 2023
Thesis identifier
  • T16705
Person Identifier (Local)
  • 201654841
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Abstract
  • This research aims to propose the suitable rules in Thai law to protect an individual from being insulted. Now, the Thai law of insult protects the individual through the Criminal Code and the Civil and Commercial Code. Under the Criminal Code, two forms of insult are criminalised under s 393: (i) insulting an individual in his or her presence and (ii) insulting an individual by means of communication to the public. Under the Civil and Commercial Code, an insulted individual is protected by the general principle of tort law (s 420). Thai law also protects an individual from being defamed but by different specific rules. The Criminal Code has the Offence of Defamation Chapter (ss 326-333) having specific rules applicable to defamation; the Civil and Commercial Code also has specific provisions addressing the liability of the defamer (s 423) and the compensation which can be claimed by the defamed individual (s 447). One of the conclusions of this research will be that the specific rules relating to defamation provide better protection to defamed individuals than the rules relating to insults. Having analysed the interest protected under the Thai law of insult, I found that the first form of insult aims to preserve public order and to protect the personality right, while the second form, together with tort law, mainly aim to protect the personality right. This interest is similar to the interest protected under the Thai law of defamation. Therefore, I propose that amendments should be made to the Criminal Code and the Civil and Commercial Code so that most of the rules applicable to defamation should be applicable to actions based on insult too. I also examined the Thai law of insult and my proposed amendments at a conceptual level to determine whether Thai law needs to provide any protection to an insulted individual through the criminal and civil law. To find an answer, I mainly used the concepts of reputation adopted from Robert Post in his analysis of the common law of defamation. He identified a number of different aspects of reputation, and I argue that one of his concepts: the concept of reputation as dignity can be a basic to provide a rationale for the Thai law of insult. Having analysed the dignity concept, I found that it contains technical terms such as dignity or rules of civility which make the concept hard to understand. I then reconstruct this concept by using Post’s logic and referred to Erving Goffman’s paper which Post adopted this concept from. I clarify that this concept is actually about having law as a means to protect an individual’s personality (self-identity) from being substantially harmed. Under this concept, the personality of an individual is created through his or her demeanours and is confirmed by others by their acts of deference. The personality is harmed when others, who contact with him or her, refuse to perform the act of deference to confirm his or her personality; in other words, violating the society’s rule of deference. If the violation is done privately between two individuals, it will be unclear whether the violator has no social competence, or the personality of the other individual is harmed. But when the violation is done in the presence of a third person, the harm to the personality can be clearer or substantial because the third person might agree with the violator and thereby refuse to confirm the self-identity which that individual has created. Law, in this case the law of defamation, can be a tool to protect this individual’s personality when the violation is done by speech. This is because this law allows the harmed individual to use a court as an arena to argue that another individual violated the society’s rule of deference and his or her personality should not be harmed. This reconstruction of Post’s concept can be a rationale for Thai law of insult with my amendment because the Thai law of insult can also be another means to protect an individual’s personality. An insult can be seen as a violation to Thai society’s rule of deference. The personality of an individual can be regarded as an interest protected under the law of insult. Insulted individuals should use the law of insult to have a court as an arena to argue that their insulters violated the Thai society’s rule of deference in order to heal the harm to the personality. Thai law currently allows insulted individuals to use criminal or civil law to have a court as an arena to heal this harm. Thus, this concept can provide a rationale for Thai law to regulate insults. But it cannot answer why Thai law needs both criminal and civil law to protect insulted victims. Nonetheless, I argue that it is more suitable for Thai society to protect this individual by using both criminal and civil law than decriminalising criminal law of insult. Furthermore, I also compared the Thai law of insult with German law to support my amendments to improve Thai law. German law is chosen mainly because, like Thai law, it also protects an insulted individual with both the criminal and the civil law. In German criminal law, insult and defamation are stated in the same Chapter of the Criminal Code (the Strafgesetzbuch, originally enacted in 1872). Moreover, I found that German law has a clearer standard to determine insulting content than Thai law, which could help to give better effect to the policy behind the Thai law of insult. In civil law, I found that German law also protects an insulted individual by the general principle of tort law, but German law has the clearer standard to determine the civil liability of insulters. An insult is regarded as a violation to the general personality right deriving from the German Constitution (the Grundgesetz, originally adopted in 1949) Articles 1 and 2. An insulter will be civilly liable when their violation to the personality right is serious. More importantly, the protection provided to an insulted individual must be balanced with the right to free expression of the insulter. Not only does the comparison with German law support my amendments to improve Thai law, but it also suggests an additional way to provide suitable protection to an insulted individual in Thailand. German law regards an insult as a constitutional matter and the German Federal Constitutional Court therefore has a role in this conflict. This is because it is a conflict between the general personality right and the right to free expression, both of which are constitutional rights. German Courts which decide this conflict have to balance between the law protecting an insulted individual with the right to free expression, and the way they do so provide valuable lessons for Thailand. From the above findings, the original contributions to knowledge achieved from this research can be summarised as follows. First, I found that the reconstruction of the concept of reputation as dignity can be a rationale for the Thai law of insult. Secondly, I found the more suitable ways to protect an individual from being insulted than the way provided under the current Thai law of insult under the Criminal Code and Civil and Commercial Code. Finally, I found an additional way for Thai law to protect an insulted individual by authorising the Thai Constitutional Court to have a role in balancing between the law protecting the individual and the right to free expression.
Advisor / supervisor
  • Edwards, Lilian
  • Norrie, Kenneth McK. (Kenneth McKenzie), 1959-
  • Gillies, Lorna E.
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