Anti-SLAPP in Thailand: Criminal Procedure Code Sections 161/1 and 165/2

TL;DR: Thailand's Criminal Procedure Code Amendment Act (No. 30) B.E. 2562 (2019) added Sections 161/1 and 165/2, allowing courts to dismiss criminal complaints filed in bad faith or to harass at the preliminary examination stage. These provisions function as 'anti-SLAPP' protections, primarily relevant to journalists, activists, and businesses targeted by strategic criminal complaints (especially defamation).

What is SLAPP?

A Strategic Lawsuit Against Public Participation (SLAPP) is a lawsuit filed not to win on the merits but to silence a defendant through the cost, time, and stress of litigation. In Thailand, criminal defamation under Penal Code Sections 326-333 has historically been a favored SLAPP vehicle because of low filing costs, the threat of imprisonment, and the social stigma of a criminal record.

Section 161/1 — Court's Power to Dismiss Bad-Faith Complaints

Added by the Criminal Procedure Code Amendment Act (No. 30) B.E. 2562 (2019), Section 161/1 provides that the court may dismiss a criminal complaint at the preliminary examination (ชั้นไต่สวนมูลฟ้อง) stage if it appears that the complainant:

• Filed the complaint without genuine intent to seek criminal accountability;
• Filed for an improper purpose, such as to harass, intimidate, retaliate, or gain undue advantage;
• Filed for purposes inconsistent with the proper function of the courts.

The court can dismiss without proceeding to a full trial. This is significant because Thai criminal cases otherwise require the defendant to endure full prosecution before being acquitted.

Section 165/2 — Defendant's Right to Present Evidence at Preliminary Examination

Section 165/2, also added in 2019, expanded the defendant's rights at the preliminary examination stage. The defendant may now:

• Present documents and evidence to demonstrate the complaint lacks merit;
• Examine witnesses called by the complainant;
• Cross-examine to expose improper purpose.

Previously, defendants had limited participation rights at preliminary examination. Section 165/2 levels the playing field, particularly important for SLAPP scenarios where the complainant relies on procedural intimidation.

Public Prosecutor Withdrawal Power

Under Section 21 of the Public Prosecution Organ and Public Prosecutors Act B.E. 2553 (2010), public prosecutors can decline to prosecute or withdraw a case in the public interest. The Office of the Attorney General has issued internal guidelines regarding cases targeting human rights defenders and journalists, although application remains case-by-case.

Practical Application

These provisions matter most in private criminal complaints — cases initiated directly by individuals or companies rather than through police investigation and public prosecution. Under Sections 28-29 of the Criminal Procedure Code, victims can file private complaints for compoundable offences and certain non-compoundable offences. Defamation, computer crime defamation, and misappropriation are common SLAPP categories.

Typical SLAPP Patterns in Thailand

• Criminal defamation filed against journalists for reporting on companies or public figures (Penal Code Section 326)
• Computer Crime Act Section 14(1) — distributing 'false information' — used against online critics
• Lèse-majesté complaints (Penal Code Section 112) filed by private individuals — though these have specific procedures and are not within the scope of standard anti-SLAPP analysis
• Trespass and labor-related complaints against community activists and workers

How Section 161/1 Has Been Applied

Since 2019, Thai courts have granted Section 161/1 dismissals in some cases involving journalists and activists, while denying others. Thai trial courts retain discretion. Successful Section 161/1 motions typically demonstrate:

• A pattern of similar complaints by the same complainant against multiple defendants
• Direct correspondence between the publication or activity and the complaint
• Public interest character of the speech or activity
• Lack of clear damage to reputation (in defamation cases)

Common Mistakes

Common Mistakes: (1) Treating Section 161/1 as automatic — courts retain discretion, and case selection is critical. (2) Failing to gather evidence of bad faith before the preliminary examination — strategic patterns of complaints often only emerge with research. (3) Confusing criminal defamation defenses (truth, fair comment under Section 329) with anti-SLAPP arguments — these operate differently. (4) Underestimating the importance of public-interest framing in Thai courts.

FAQs

Are Sections 161/1 and 165/2 limited to defamation cases?

No. They apply to any criminal complaint at the preliminary examination stage. However, defamation is the most common SLAPP context.

Do these provisions also protect against civil SLAPP suits?

No — they are Criminal Procedure Code provisions. Civil claims (including civil defamation under Civil and Commercial Code Section 423) are governed by different procedures. Civil court fees in Thailand do create some self-limiting pressure on frivolous civil complaints.

Can a journalist invoke Section 161/1 to dismiss a Computer Crime Act complaint?

Yes, in principle. Section 161/1 applies to any criminal complaint subject to preliminary examination. Computer Crime Act complaints have been dismissed using this provision in several reported cases.

What evidence shows 'improper purpose'?

Documentation of: prior complaints by the same party against unrelated defendants, public statements showing retaliatory intent, timing of the complaint relative to the protected activity, and disproportion between the alleged harm and the complaint sought.

Is there an explicit anti-SLAPP statute in Thailand?

No. The 2019 amendments to Sections 161/1 and 165/2 are the primary anti-SLAPP tools, supplemented by Section 21 of the Public Prosecution Organ Act and prosecutorial guidelines. There is no comprehensive anti-SLAPP statute equivalent to those in some other jurisdictions.

Related Reading

For broader context, see criminal defamation in Thailand, the Computer Crime Act B.E. 2560 (2017), and journalists' rights in Thailand.