Legal Issues Regarding the Attempt to Defame a Deceased Person under the Penal Code

Abstract

This academic article aims to examine and analyze the legal issue surrounding attempted defamation, specifically in cases where defamatory content was originally recorded or disseminated, such as in theses, books, or academic texts, at an earlier point in time. Such content, though dormant, may later be disseminated or cited by other individuals, resulting in reputational harm to the defamed party, including being subject to contempt or hatred. This harm may occur posthumously, affecting either the defamed party or even the alleged defamer, both of whom may be deceased at the time of dissemination. Under current Thai criminal law, there is no explicit provision addressing this form of attempted defamation. The study adopts a doctrinal approach, drawing upon Supreme Court judgments and comparative legal analysis from foreign jurisdictions concerning the elements of defamation and attempted defamation. It further considers the legal and ethical implications for affected parties, including the heirs of the defamed or the defamer, particularly in instances where such heirs were neither involved in nor cognizant of the defamatory act. The research also explores the intersection between defamation law, human rights principles, freedom of expression, and the right to reputation and dignity under international legal frameworks. It highlights the legal gap in protecting the deceased, who, despite no longer possessing legal personality, may still warrant reputational safeguards. If there is a malicious slander against the deceased, it may lead the public to misperceive the deceased’s character, thereby causing those in close proximity to the deceased—such as parents, spouse or children—to become secondary victims.

          The findings suggest the need for more straightforward interpretive guidelines concerning attempted defamation to ensure coherence with the fundamental principles of criminal law. The study recommends legislative amendments that align Thai defamation law with international human rights standards, particularly in relation to the posthumous protection of personal dignity.