of opinion and expression as set out above.1 This protective obligation is affirmed by the UNGPs as they relate specifically to business, under the first pillar, obligation to protect. 4. The rights to free expression, assembly and to freedom of information are also guaranteed by the Constitution of the Kingdom of Thailand B.E. 2560 (2017). Section 34 enshrines a person’s right to “enjoy the liberty to express opinions, make speeches, write, print, publicize and express by other means;” Section 36 ensures “a person shall enjoy the liberty of communication by any means;” Section 41 ensures “a person and a community shall have the right to… [among other things]…present a petition to a State agency and be informed of the result of its consideration expeditiously;” and Section 44 ensures “a person shall enjoy the liberty to assemble peacefully and without arms.” 5. While, in certain limited circumstances, a State may restrict the right to freedom of expression, any such restrictions must be strictly limited in accordance with the ICCPR and Thailand’s Constitution and shall only be such as are provided by law and are necessary for respect of the rights or reputations of others, or for the protection of national security or of public order (ordre public), public health or morals. Such restrictions must also meet a strict three-part test.2 Any restrictions must be (i) legitimate, provided by law, which is clear and accessible to everyone3 and formulated with sufficient precision to enable an individual to regulate his or her conduct;4 (ii) proven strictly necessary to protect the rights or reputation of others, national security or public order, public health or morals;5 and (iii) proven to be the least restrictive and proportionate means to achieve the purported aim.6 Judicial harassment of HRDs 6. In April 2017, the UN Human Rights Committee, the supervisory body charged with assessing State compliance with provisions of the ICCPR, expressed concern in its review of Thailand’s periodic report, at “criminal proceedings, especially criminal defamation charges, brought against human rights defenders, activists, journalists and other individuals” for merely exercising their fundamental freedoms and recommended that Thailand “should take all measures necessary to guarantee the enjoyment of freedom of opinion and expression in all their forms, in accordance with article 19 of the Covenant.”7 7. During its official visit to Thailand in April 2018, the U.N. Working Group on Business and Human Rights similarly called on the Thai government to “ensure that defamation cases are not used by businesses as a tool to undermine legitimate rights and freedoms of affected rights holders, civil society organizations and human rights defenders.” The Working Group further recommended “enacting anti-SLAPP legislation to ensure that human rights defenders are not subjected to civil liability for their activities.” 8 8. Within Thailand’s legal framework, criminal defamation (Articles 326-328 of the Thai Criminal Code), Article 14 of the Computer-Related Crime Act B.E.2550 (2007), Article 116 of the Thai Criminal Code, a sedition-like offence, and the Public Assembly Act B.E. UN Human Rights Committee, General comment no. 34, Article 19, Freedoms of opinion and expression, 12 September 2011, CCPR/C/GC/34, para. 7, available at: http://www.refworld.org/docid/4ed34b562.html. 2 Ibid, especially paras. 21-36; UN Human Rights Council, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 4 June 2012, A/HRC/20/17, para. 64 and 81, available at: http://www.refworld.org/docid/5008134b2.html. 3 Report of the Special Rapporteur, 2012. 4 General Comment No. 34, para 25. 5 Report of the Special Rapporteur, 2012. 6 Ibid. 7 UN Human Rights Committee, Concluding Observations, CCPR/C/THA/CO/2, 25 April 2017, available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC %2fTHA%2fCO%2f2&Lang=en 8 United Nations Working Group on Business and Human Rights, Statement at the end of visit to Thailand by the United Nations Working Group on Business and Human Rights, 4 April 2018, available at: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22915&LangID=E 1 2