their region.19 In January 2018, a public prosecutor in Songkhla province filed criminal lawsuits against 16 persons for alleged violation of the Public Assembly Act for holding a protest against the coal-fired power plant project in Thepha district, Songkhla province.20 In October 2018, farming company Thammakaset Co. Ltd. filed criminal and civil defamation complaints against Nan Win, a Burmese migrant worker, and Sutharee Wannasiri, a human rights defender and former Human Rights Specialist with non-governmental organization Fortify Rights. These complaints related to a 107second film published by Fortify Rights that called on Thai authorities to drop criminal defamation charges against 14 migrant workers at a Thammakaset-operated chicken farm and to decriminalize defamation in Thailand. Nan Win had appeared in the film and Sutharee Wannasiri had shared information about the film on social media in her capacity as a Fortify Rights representative. 21 19. These cases highlight that Article 161/1 would be insufficient to curtail and protect against SLAPP lawsuits, since it would not have applied to most of them, as some were criminal cases filed by public prosecutors, while others were civil cases. Certain laws, including in particular criminal defamation laws, are misused to harass and intimidate individuals, and should be repealed in the first place. The UN Human Rights Committee has clarified that defamation laws must ensure they do not serve, in practice, to contravene the rights to freedom of expression and information protected under the ICCPR. The use of criminal sanctions rather than civil damages also constitutes a disproportionate means of protecting the reputation of others. While civil penalties may in some instances be appropriate to achieve a lawful aim of protection of reputation, the imposition of such penalties must be proportionate and strictly necessary to achieve a legitimate purpose.22 By contrast, the Human Rights Committee has indicated that criminal penalties will generally be inappropriate for defamation, and that States should consider repealing criminal defamation laws, and that imprisonment can never be a necessary and proportionate sanction for defamation.23 20. Finally, paragraph 2 of Article 161/1 may result in the curtailment of an individual’s rights to access to justice and a fair trial, in prohibiting complainants who are determined to have intentionally, and without appropriate reason, violated a final court’s orders or judgments in another case from filing a lawsuit. An individual’s right to access to justice and to file a lawsuit should not be negatively impacted by a decision in another case which has no legal effect or bearing on the case he or she wishes to file. The paragraph is also vague and unclear about what constitute “any appropriate reasons” which can prevent a complainant from filing a lawsuit. Article 165/2 of the Criminal Procedure Code 21. Article 165/2 of the Criminal Procedure Code was recently published in the Government Gazette and entered into force on 20 February 2019.24 The law states that: “During the preliminary hearing, the defendant may submit to the court a significant fact or law which may bring the court to the conclusion that the case before it lacks merit, and may include in the submission as evidence, persons, documents or materials to substantiate the defendant’s claims provided in the submission. In such case, the court may call such persons, documents or materials to provide evidence in its Fortify Rights, Thailand: Stop Judicial Harassment of Human Rights Defenders, 9 May 2016, available at:https://www.fortifyrights.org/publication-20160510.html; See also ICJ and TLHR, Joint Submission in advance of the examination of the Kingdom of Thailand’s Second Periodic Report under Article 40 of the International Covenant On Civil And Political Rights, para 59, March 2017, available at: https://www.icj.org/wp-content/uploads/2017/02/Thailand-ICCPR-Submission-ICJ-TLHR-Advocacy-Non-legalsubmissions-2017-ENG.pdf 20 Thai PBS, 16 coal-fired power plant protesters prosecuted, 13 January 2018, available at: http://englishnews.thaipbs.or.th/16-coal-fired-power-plant-protesters-prosecuted/ 21 ICJ, Thailand: Drop defamation complaints against human rights defenders Nan Win and Sutharee Wannasiri, 3 December 2018, available at: https://www.icj.org/thailand-drop-defamation-complaints-againsthuman-rights-defenders-nan-win-and-sutharee-wannasiri/ 22 General Comment No. 34, para. 47 23 Ibid 24 Available at: http://www.ratchakitcha.soc.go.th/DATA/PDF/2562/A/020/T_0001.PDF 19 5