Criminal defamation, corporations, and free speech: the Andy Hall case

Andy Hall is a British researcher, who until recently was based at the Institute for Population and Social Research at Mahidol University. He has conducted research and written about migrant workers in Thailand. Natural Fruit is a Thai fruit processing company.

In January 2013, Finnwatch, a Finnish NGO focusing on global corporate responsibility issues, issued a report looking at the actions of two tuna companies, Thai Union Manufacturing and Unicord, and a fruit processing company called Natural Fruit.

According to Finnwatch, the report provides ” well-documented worker testimonies pointing to the use of forced labour and practices which may amount to human trafficking by a Thai company with strong ties to the European market. The migration and human rights expert who conducted the research, a British citizen named Andy Hall…”

A Thai worker loads up crates of Pepsi for delivery in Bangkok, Thailand. Pic: AP.

The report is in Finnish only, but an executive summary in English is available and below is the excerpt for Natural Fruit:

For example, Refresco, the company that supplies pineapple concentrate from the Natural Fruit factory where basic rights are grossly violated to Finland for further processing, is a leading global player in its field with notable customers in Europe. According to some estimates, Refresco controls 20 percent of the European private label soft drink and fruit juice market, for example. In 2010 the company recorded EUR 1.22 billion in revenues. After this it has acquired several smaller companies and presently has 26 production facilities in eight European countries. In addition to the Finnish retail chains mentioned above, Refresco’s clients include Lidl, Aldi, Carrefour, Dia, Morrisons, Edeka, Rewe, Superunie, Ahold and Système U. It has the exclusive right to produce PepsiCo, Coca-Cola, Schweppes and Unilever in a number of European countries.

The field research was conducted in the province of Prachuap Kiri Khan in November 2011 in order to assess the production circumstances of private label juices sold in Finland. The Natural Fruit factory in question produces pineapple juice concentrate and a variety of canned pineapple products. The employees interviewed for this report worked in various departments.

There were approximately 800 workers in the factory, of whom about 100 were Thai and 700 from Myanmar. According to the interviewed workers and NGO estimates, there were some 200 irregular migrants who had come to the country without proper documentation in the factory. The research revealed serious human rights offences and illegal activities. Finnwatch has reported the findings to the authorities of Finland, EU and Thailand, as well as several labour and human rights organisations in December 2012. The factory refused all collaboration with the research team during the field investigation and would not meet the researchers.

“No one wants to work here”

The working conditions in the factory producing pineapple juice concentrate differed significantly from the tuna factories. For example, when the researchers asked about the factory’s practices with recruitment fees, the employees said that the factory did not collect such fees as no one wanted to work there in the first place. The investigated factory has various ways of keeping workers in the factory. The employer had confiscated passports and work permits from most of the migrant workers interviewed.

….

The majority of the workers were irregular migrants who had come to Thailand with the help of a smuggler and were completely dependent on the factory and its illegal collaboration with the local police. When starting work the workers are not offered any work equipment on behalf of the employer. The workers must buy shoes for 125 baht (4.2 dollars), gloves for 35 baht (1.2 dollars), a hat for 75 baht (2.5 dollars), a t-shirt for 158 baht (5.3 dollars), an apron for 45 baht (1.5 dollars) and a hairnet for 25 baht (0.9 dollars). Some of the equipment wears out quickly and after that they have to be replaced with new ones by the workers at their own expense. In addition, the factory requires that all workers have a factory ID-card, which the workers have to buy for 20 baht (0.7 dollars).

Illegally low wages and excessive overtime work

All the interviewed workers were paid less than the local minimum wage (240 baht per day).

The minimum wage varied from 200- 230 baht. The wages differed, for example, in relation to the status of the employee: the irregular migrants were paid less than the regular migrants. The workers did not have written work contracts and no right to annual leave.

The interviewed workers told that they worked up to 5-10 hours overtime per day and that working overtime was compulsory. … The overtime compensation was 30–35 baht per hour. The legal overtime compensation in the region is 45 baht per hour.

The factory did not pay any bonuses. The workers said that various unclear deductions were made from their wages. They did not get payslips and did not understand all the deductions.

Dangerous working conditions

The interviewed workers told that the temperature inside the factory was very high but there was no air conditioning. Heatstrokes and fainting were common among the workers. The factory had only two water fountains that did not have enough cold water for all. The workers performed monotonous tasks for long hours in one position without any breaks. Strong cleaning chemicals were used in the production lines and some workers had allergic reactions from the chlorine.

According to the workers some of the factory’s machines are dangerous. Three interviewees reported a case in which a worker had died from an electric shock from a machine….

BP: BP is under no illusion that most factory jobs are pleasant, but it is interesting to contrast Natural Fruit with Thai Union Manufacturing and just how much better the conditions are at Thai Union (workers receive minimum wage, no forced overtime, some paid holidays, bonuses etc). It is interesting to note that Natural Fruit did not collaborate at all with Finnwatch. This differs from the two other companies who collaborated to some degree (at least with the researchers who presented them with their findings and provided a response on what actions they would take to the problems raised). The other two companies have not sued as well.

Based on the report, the actions of Natural Fruit are not just, in BP’s opinion, morally wrong, but also illegal.

In response to the report, Natural Fruit sue the main researcher Andy Hall (and him alone). The Bangkok Post:

A Prachuap Khiri Khan pineapple canning company filed criminal defamation charges against a British human rights advocate over treatment of migrant workers by the company.

Natural Fruit Co Ltd, which has headquarters in Pran Buri, claimed that Andy Hall, a British citizen, had damaged its reputation with libellous statements about its relations with migrant workers, according to papers at the website of the Southern Bangkok Criminal Court’s website and NGO sources.

Mr Hall, 32, well-known in Thaland although he was reportedly in Myanmar on Tuesday, faces charges under the Computer Crimes Act that carry penalties of up to five years in prison on each count.

BP: Any had uploaded a letter from the lawyer here.

Reuters has more:

Natural Fruit – owned and operated by the brother of Democrat Party Secretary General Chalermchai Sri-On – says the accusations of child labour, unsafe working conditions and unlawfully low wages are false and have caused significant loss of reputation to the company.

It filed civil and criminal defamation cases against Hall – but not against the NGO Finnwatch or four other co-authors of the report – and is seeking 300 million baht ($ 10 million) in compensation.

Natural Fruit lawyer Somsak Torugsa said the company is focusing on Hall – and not Finnwatch and the other researchers – because he held a press conference on his findings in Bangkok.

Doing research is good, but it has to be based on fact. The prosecution is fighting what Andy Hall said because it is not true,” Somsak said. “The plaintiff said they didn’t do anything illegal like Hall said.”

ABC Australia has more details. Below are some excerpts including what Natural Fruit is saying:

The Natural Fruit Company has hired Dr Somsak Torugsa, a star lawyer in Thailand who’s been in the legal business for nearly 30 years.

SOMSAK TORUGSA (translated): Activists shouldn’t use what the plaintiff says is not true to accuse them, and then get protection. I don’t agree with that. We have to consider the innocent people whose business is damaged. What can they do?

ZOE DANIEL: Mr Hall works between Thailand and Myanmar and says he hasn’t received a summons to appear in court. The court has given the company three weeks to find an address for him inside the country, otherwise notification of legal action will be delivered to his home in the UK.

Natural Fruit chairman, Virat Piyapornpaiboon, who is an elder brother of the former labour minister, who’s now secretary general of Thailand’s opposition Democrat Party, has challenged Andy Hall to attend the court to face the charges. He denies that any abuse of migrant workers has been taking place within the business.

(Virat Piyapornpaiboon speaking)

There is not. Tell Andy that if he is a man then come to meet me. I’ve already said that if he is wrong he can apologize to me if he realizes he is wrong. But if he thinks he is right come and fight in court so it will be over“.

The Bangkok Post has details of an interview with Andy. Below is an excerpt:

The research we conducted and reported is completely true. There’s clearly no intention for me to defame them or to do anything wrong, just to present the truth in the public interest and to protect the workers in the factory.

So if they claim that I did certain things, if we think that those claims are unacceptable, we will prosecute them.

I certainly have all the documents and evidence to show that there is abuse going on at the factory. We have recorded interviews, we have the videos … we were there in the factory a couple of days ago, and the conditions are just the same as we reported. So there is no doubt that we will win the case because what we said is true.

BP: On one hand, as an outsider with no specific knowledge of the case aside from what has been reported, it is difficult to know who is telling the truth or not. BP has read many claims printed in the media by NGOs etc which are not always supported by facts and in some cases there is external evidence to prove they are wrong or the statements are misleading.

From Andy’s side, he states they have videos to back up what was reported. In addition, Al Jazeera did a story on the case and spoke to one worker who corroborated some of the statements made in the Finnwatch report. Also, the report is not a general criticism, it is based on specific examples from interviews. Andy/Finnwatch gave an opportunity to Natural Fruit to respond, and they refused unlike the two other companies.

For Natural Fruit, there are no specifics about what they view is wrong – except for general statements that what Andy said was wrong/not true – let alone any external evidence to back it up. BP has tried googling to see if they have made any statements to the Thai language press, looked on their Web site, and there is nothing specific. If they view there are factual mistakes, shouldn’t they more specific about refuting them? That is of course, if there are factual mistakes…

HRW points to the problem with the lawsuit in a statement:

Criminal charges against Andy Hall reflect an attempt to stifle serious reporting on alleged abuses by one of Thailand’s top fruit processors, said Brad Adams, Asia director at Human Rights Watch. “Freedom to investigate abuses by corporations is critical to ensure compliance and accountability under Thai law and human rights standards.”

….

The fundamental human rights and labor rights of workers in Thailand’s key export sectors, such as shrimp, tuna, and fruit processing, have been regularly violated over the years, Human Rights Watch said. Migrant workers in particular receive little protection from Thai labor laws. A migrant worker registry and “nationality verification” scheme provides legal documentation for workers, but does little to counter the impunity with which employers violate such workers’ rights. Migrant workers remain extremely vulnerable to labor exploitation, physical and sexual violence, and trafficking. Yet responses by the Thai authorities have in many cases been inadequate and ineffective.

“The prosecution of Andy Hall strikes at the very core of efforts by human rights defenders to end pervasive abuses of workers in Thailand’s export industry,” Adams said. “International companies sourcing from Thailand should raise concerns with the government that using criminal charges to silence rights critics could adversely affect the overall reputation of Thailand’s major export sectors. The Thai government should welcome efforts to protect worker’s rights, not penalize them.”

BP: BP has previously blogged about the issue of criminal defamation by a corporate entity in the case of Tesco Lotus suing a former MP and an academic who wrote a column – see posts here, here, here, and here. BP has conflicted views on that case. On one hand, BP does not agree with criminal defamation especially by corporations who, but there were clear factual errors which have been admitted then BP can understand why a corporate entity wants some form of redress. Nevertheless, a correction (and in some cases an apology)* would seem to be the best way to handle factual errors.

If the person fails to issue a correction then if it was a serious factual error then can understand why a corporate entity would file a civil suit, but criminal defamation where excessive damages – and 300 million Baht is excessive – are requested turns most cases into a David vs Goliath battle with the resources of the company and the state being used against the individual because of something they said. Unless Natural Fruit can offer specifics with evidence on factual mistakes, this is really a David vs Goliath battle with “David” being sued; someone who is trying to stand up for migrant workers being exploited illegally. It serves as a further example of why criminal defamation needs to be abolished or at least, the option of companies to sue for criminal defamation abolished…

*Not every apology needs to be at the level of The Nation’s surprising (in a good way) apology to Yingluck and Srettha for what can only be described as an unbelievable error by the paper, but the more serious the factual error the bigger response needs to be.

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