Wednesday, April 04, 2007

When Speech Can Get You in Jail

Last month policemen arrived at the offices of the Philippine Enquirer, the nation’s leading newspaper, and arrested the publisher, editor-in-chief and several senior editors. Their alleged offense: libel.

Libel? Since when can libel get you arrested in a free country? It might empty your pocketbook in punitive damages in a civil suit, but jail time?

In the Philippine case, the newspaper had printed articles attacking President Gloria Macapagal-Arroyo’s husband Mike for alleged corruption. Those arrested spent a night in jail and then were released after posting bail.

Last week another media mogul, Sondhi Limthongkul head of Thailand’s Manager Group was convicted of criminal libel and sentenced to two years in jail, the maximum penalty. He is free on bail pending appeal.

Both these cases brought me up short, and not just because, as an editor for Asia Times Online, I work for Sondhi. I’ve worked as a journalist in Asia for 20 years, I know that the region is very litigious, yet this was the first time I had heard of criminal libel.

To be clear, civil libel is common, and, in many cases, appropriate, even though it has sometimes been misused in Asia to bankrupt political opponents. Criminal libel uses the organs of the state to punish defamation, and in Asia criminal defamation is used with alarming regularity.

The Philippine news papers targeted in the First Husband’s campaign have not had to pay him a peso in punitive damages, yet they’ve had to shell out thousands of dollars in bail just to keep their editors out of jail. This in a country known for vigorous free press.

Former Thai prime minister Thaksin Shinawatra, who was ousted in a coup d’etat last September, was notorious for using libel or threats of libel to intimidate political enemies and cover up misgovernance. Sondhi, who in early 2006 led many anti-Thaksin protests, was hit withat least six civil and criminal suits.

Interestingly, one of the strongest setbacks for criminal libel took place in Indonesia. In 2006 the Supreme Court overturned a lower court decision that Tempo editor Bambang Harymurti serve a year in jail for libeling a wealthy businessman.

Lest one think that criminal libel is something that only happens in authoritarian governments of Southeast Asia, it is worth noting that 17 states in the Land of the Free also have criminal libel laws, and not all are dead letters.

There have been criminal prosecutions for defamation in Colorado and Oklahoma as recently as 2004, Many cases involved prominent politicians feeling slandered on websites.

Last month Utah’s Legislature repealed criminal laws relating to libel and slander that had been on the state’s statue books since statehood, acting after the courts had invalidated a prosecution. Yet the legislators stubbornly refused to repeal the law making defamation a criminal offense.