UPDATED 11 January 2016 Q&A: Criminal and Civil Prosecutions – Natural Fruit vs. Andy Hall
1. What are all the prosecutions about?
Migrant rights defender and researcher Andy Hall worked as a research coordinator for a Finnish NGO Finnwatch in 2012. With assistance from a team of translators and fixers, Andy conducted worker interviews in Thailand. Finnwatch published the interview findings in a report Cheap Has a High Price in January 2013.
Based on information provided by migrant workers from Myanmar, the report alleged serious human rights violations in the Natural Fruit Company Ltd. factory in Prachuap Khiri Khan province in Southern Thailand. Natural Fruit reacted to the critique by pressing criminal and civil charges against Andy Hall, a private person, and not Finnwatch as the organisation that authored the report.
In its prosecution documents, Natural Fruit cites Andy Hall’s name on the front page of an English Executive Summary of the report as sufficient evidence of Hall’s authorship and responsibility for the report, as well as alleges his actual involvement in uploading and disseminating the report onto Finnwatch’s website. The report was authored only by Finnwatch and Andy Hall has no administrative access to Finnwatch’s website.
Altogether Natural Fruit has filed two cases against Andy Hall under criminal defamation provisions in Thailand’s Criminal Code as well as two civil defamation cases. One of the criminal defamation cases also includes allegations under the Computer Crime Act. The cases are widely considered an example of judicial harassment by companies and governments and an attempt to silence a human rights defender.
2. Who is Natural Fruit? Who is its owner?
Natural Fruit Company Ltd. is a company that produces pineapple products and is part of Nat Group. Other companies belonging to the group are Prafic and Prafic 2005, which produce dried fruits and aloe vera products. In 2012, Natural Fruit supplied juice concentrate for Finnish retailers SOK, Kesko and Tuko Logistics private label juices (produced by Finnish VIP-Juicemaker Oy).
The owner of Natural Fruit Wirat Piyapornpaiboon is the elder brother of Thailand’s former labour minister and former general secretary of the Democratic Party Chalermchai Sri-On, who was also the senator of Prachuap Khiri Khan province for many years. Wirat Piyapornpaiboon has many other business in addition to those that are part of Nat Group including Siam Aloe Vera Co. Ltd., a company that manufactures and exports canned aloe vera.
Wirat Piyapornpaiboon is a powerful actor also in Thailand’s pineapple industry as he is the President of the Thai Pineapple Industry Association TPIA. TPIA represents over 60 pineapple companies in Thailand.
3. Who is Andy Hall? What is Finnwatch?
Andy Hall is a British national and has been a resident of Thailand for almost 11 years. He currently lives in Bangkok. During 2013 and until Hall’s passport was confiscated as part of his prosecutions in May 2014, he was a resident of Myanmar advising the Myanmar Government on migration issues and lived in Yangon.
Andy Hall is trained in law and a researcher on migration issues in Southeast Asia. He studied for a PhD at Cardiff University and Melbourne University. His PhD thesis looked at proposals to develop occupational health and safety laws relating to organisational criminal responsibility for industrial deaths in Australia, Canada and the UK.
In 2012, Finnwatch hired Andy Hall as a consultant researcher to coordinate field research in Thailand for the organisation’s project on social responsibility of private label products of Finnish supermarket chains. It was in this capacity that Andy Hall interviewed workers at Natural Fruit factory, with assistance from translators and fixers.
Finnwatch is a Finnish corporate social responsibilty watchdog backed by a number of development aid organisations, trade unions and consumer rights’ groups. The project on social responsibility of private label products was part of the organisation’s Decent Work Research Programme.
4. What is the current state of play with the four cases brought by Natural Fruit against Andy Hall?
a) Criminal Defamation Case – Aljazeera interview
The first of the four cases to reach a trial stage was a criminal defamation case which dealt with an interview Andy Hall gave to Aljazeera in Yangon, Myanmar in April 2013. Ironically, the interview was about the other two cases brought by Natural Fruit against Andy Hall earlier that year and following the publication of the Finnwatch report (see below).
According to Natural Fruit, Andy Hall intentionally harmed the reputation of the company by speaking and/or publishing false information. The trial was heard from 2nd to 10th September 2014 at Prakanong Court, Bangkok. On 29th October 2014, the Court delivered its verdict, dismissing the charges on the grounds of flawed prosecution that was in breach of the Thai Criminal Procedure Code. The Court subsequently returned to Andy Hall his British passport which had been confiscated as a condition for bail in May 2014.
Thailand’s Attorney General and Natural Fruit appealed the legality of the dismissal to the Appeals Court in January 2015. The Appeal Court’s decision, dismissing the appeal, was announced on 18th September 2015.
Natural Fruit and the Attorney General however continued to find means to appeal the case further. According to the Thai Criminal Procedure Code, a twice dismissed case can be further appealed to the Supreme Court on the permission of either the Attorney General or the court of first instance. In this case, the request to appeal to the Supreme Court has apparently been made to the Attorney General, the same person who is prosecuting Andy Hall. The permission to appeal was granted in November 2015, and both the Attorney General and Natural Fruit have since submitted their appeals on the case to Thailand’s Supreme Court. The appeal decision by the Supreme Court has yet to be scheduled.
The charge carries a maximum penalty of one years’ imprisonment if convicted.
b) Criminal Defamation and Computer Crimes Case – Finnwatch report
After seven preliminary hearings held between 17th November 2014 and 20th July 2015, the Bangkok South Criminal Court on 24th August 2015 decided to proceed to a criminal trial with the original criminal defamation and computer crimes prosecutions brought by Natural Fruit Company Ltd. against Andy Hall. These prosecutions relate to the publication of the Finnwatch report Cheap Has a High Price.
Andy Hall will be formally indicted for these prosecutions in a hearing at Bangkok South Criminal Court on Charoen Krung Road (Court Room 501) on 18 January 2016 at 9am. Andy Hall will attend the hearing and will plead ‘not guilty’ to all the charges for which he will be indicted. Prior to this, Andy Hall will surrender himself into detention pending a request for bail to the Court on 13 January 2016 at 9am.
The indictment hearing had originally been scheduled for October 2015 but it was adjourned until January 2016 as the summons had not been served to Andy Hall in accordance to the law at the correct address.
The trial on these prosecutions is expected to commence later in 2016. The charges carry together a maximum penalty of 7 years’ imprisonment.
During the preliminary hearings in this prosecution, Natural Fruit was able to produce its own witnesses to the Court to try to convince the Court to proceed with the case to a trial whereas the defense only had the opportunity to cross examine prosecution witnesses. Andy Hall was not in attendance at the preliminary hearings but was represented through his lawyers who cross-examined the prosecution witnesses on his behalf. The prosecution witnesses included Natural Fruit factory management, owners, migrant workers, academics and other concerned parties.
c) Civil defamation / damages – Finnwatch report
A 300 million baht damages claim against Andy Hall was filed by Natural Fruit following the publication of the Finnwatch report in a case linked to the Bangkok South Criminal Court prosecution.
Negotiations between the two parties failed on 30th October 2014 following which the Nakhon Pathom Civil Court postponed consideration of this case until a verdict in the criminal defamation and computer crimes case (see case b above), which also concerns the Finnwatch report, is reached.
d) Civil defamation / damages – Aljazeera interview
Natural Fruit has also filed a 100 million baht damages claim against Andy Hall, related to the Aljazeera interview which he gave in Yangon, Myanmar (case a).
The first hearing on this case took place on 21st November 2014 in Prakanong Court; the second on 23rd May 2015. During the second hearing, the prosecution reportedly informed the court that the summons documents had still not been successfully served to Andy Hall in Myanmar. A third hearing scheduled for 16th November 2015 to allow adequate time for the summons to be served on Andy Hall was adjourned until 25th January 2015.
5. Are the Finnwatch findings about Natural Fruit false?
The report Cheap Has a High Price, published in 2013, is based on interviews with Natural Fruit factory workers. In line with Finnwatch’s Ethical Guidelines for research, Natural Fruit was contacted several times during the investigation by email, telephone and fax but the company refused to reply and to discuss the interview findings with Finnwatch prior to the report’s publication. Also in line with Finnwatch’s Ethical Guidelines, Natural Fruit could have issued its response to the report on Finnwatch’s website after it was published, but it never asked to do so.
Finnwatch is not the only organisation that has investigated the working conditions in Natural Fruit. An award winning Finnish reporter Hanna Nikkanen independently interviewed Natural Fruit’s former factory workers and Finnish Apu magazine published Nikkanen’s article on the same day with the Finnwatch report in 2013. Aljazeera has also interviewed a worker who escaped from Natural Fruit. More recently in November 2015, a Finnish broadcaster Yle produced a documentary on Andy Hall’s prosecutions for which they too interviewed former Natural Fruit workers. The company refused to given an interview to Yle.
In February 2013 after the release of the Finnwatch report, and some three months after Finnwatch’s field research was complete and the findings had been shared with the Thai authorities and Natural Fruit Company Ltd., Thai labour authorities also conducted an inspection in the Natural Fruit factory. The inspection report, referred to widely during Andy Hall’s first trial in September 2014, found several deficiencies in the factory including different kinds of illegal deductions from the salaries, illegally long over time hours, deficiencies in sanitation rooms and restrictions of toilet visits. However, to date no one has been brought to justice for the alleged human rights violations at the Natural Fruit factory.
In 2014, Finnwatch published a follow-up report on working conditions in Natural Fruit. According to the report, there were still labour rights issues in the factory. Due to the ongoing court proceedings, Andy Hall did not take part in this particular research project. Natural Fruit has commented on the follow up report briefly by denying all alleged illegalities.
6. Are the accusations of Natural Fruit true?
Natural Fruit is accusing Andy Hall of intentionally harming Natural Fruit and for causing financial loss through accusations that are without basis and false.
During the September 2014 trial, Andy Hall brought evidence to the Court to show he had no personal interest or intention to harm Natural Fruit. The researcher had never met the owners or management of Natural Fruit and had never been in any contact or conflict with the factory before conducting the field study for Finnwatch. Finnwatch got the name and address of Natural Fruit from the Finnish retailer SOK when initiating the investigation on the social responsibility of randomly chosen private label products sold in supermarkets in Finland.
Evidence was also brought to the Court by Andy Hall to show that if Natural Fruit had suffered financial loss it was because of Natural Fruit’s own actions.The first recommendation in the Cheap Has a High Price report urges companies to continue trading with Natural Fruit whilst using their leverage to work towards improvements in working conditions there. Finnish retailer SOK visited Thailand in 2013 and met with Natural Fruit. During the visit, SOK requested Natural Fruit to agree to a third party social responsibility audit but Natural Fruit refused. An Israeli company Prodalim has also informed Finnwatch that it stopped buying from Natural Fruit as Natural Fruit didn’t agree to a third party audit.
7. What would follow if Hall was found guilty of the charges against him?
If found guilty, Andy Hall could end up paying compensation and penalty fees as well as being sent to prison. Natural Fruit is claiming over seven million euros in damages, and the criminal charges brought against Andy Hall carry a combined maximum sentence of eight years in prison.
8. Will Andy Hall have a fair trial in Thailand?
There are several reasons to suspect that Andy Hall will not receive a fair trial in Thailand.
The already concluded trial in September 2014 on criminal defamation charges related to the Aljazeera interview was riddled with problems, so much so that the Court ended up dismissing the case on the grounds of procedural shortcomings. In addition to the breaches of Thailand Criminal Procedure Code sited in the Court decision, the defense was not given sufficient time to prepare its case as some of the documents that the Court had asked from the Thai government were not provided in time with many documents summonsed never appearing at all. Also during the trial hearing itself, proceedings were once halted due to translation ineffectiveness and many of the Court documents were only provided in Thai language with inadequate time for translation for Andy Hall’s proper and sufficient understanding. A defence witness, a former Natural Fruit factory employee and a migrant worker, officially reported harassment following his testimony.
The International Labour Association IUF mandated the International Centre for Trade Union Rights ICTUR to observe the trial in September 2014, and the ICTUR trial observer and lawyer Mark Plunkett, concluded in his report that Andy Hall had a complete defence to the charges and deserved to be aquitted on merits. The report also found the laws that allowed for Andy Hall’s prosecution in the first place unfair. In this case, the Thai Courts had no jurisdiction as the Aljazeera interview was given in another country and not in Thailand.
Furthermore, the provisions in Thailand’s Criminal Code that allow for deprivation of liberty as punishment for defamation have been criticised internationally as they restrict freedom of speech. Independent UN experts have expressed concern that the criminal charges against Andy Hall may be the result of his legitimate and peaceful actions and have a chilling effect on other human rights defenders and activists working in Thailand and elsewhere to expose human rights violations perpretrated by non-State actors, including companies.
9. What kind of reactions have the charges against Hall raised in Finland and internationally?
Finnwatch considers the court cases raised against Andy Hall as harassment of a human rights defender. The cases have raised international attention and the trial has been criticised widely by international organisations and labour rights associations.
More than one hundred human rights organisations and trade unions globally have expressed their support for Andy Hall. Online petitions on Andy Hall’s behalf by Walk Free and Sum Of Us have attracted 100,000s of signatures.
United Nordic, Business and Social Compliance Initiative (BSCI) and the Ethical Trading Initiative (ETI) have called on the Thai food industry and Natural Fruit Company Ltd. to ensure the withdrawal of all charges against Andy Hall.
The United Nations Office of the High Commission for Human Rights OHCHR has demanded twice for an investigation on the issues.
The governments of the UK, Finland, Denmark, Austria and Germany among others have sent observers to court hearings concerning Andy Hall’s case. The EU Delegation to Thailand has issued a statement in his support, and his case was debated during an EU Parliament hearing on Thailand in Brussels. Several members of the EU Parliament have shown their support to Andy Hall.
For more information please see Andy Hall’s blog: https://andyjhall.wordpress.com/
and twitter: @atomicalandy
Andy Hall, Researcher: +66(0)846119209, andyjhall1979 (a) gmail.com
Sonja Vartiala, Executive Director, Finnwatch: +358(0)445687465, sonja.vartiala (a) finnwatch.org