PROBLEM IN PROTECTING HUMAN IDENTITY UNDER CONTEXT OF THAI LAW: A CASE STUDY ON COMMERCIAL EXPLOITATION

Abstract

A human identity is widely exploited for a commercial benefit due to its economic value. A common way of such exploitation is use of the identity as representation of goods/services, commercial asset or trademark. Such commercial interest leads to unlawful exploitation of the identity. This may also result in a problem in application of law as, in the Thai legal system, there is only the tort law which is intended to compensate the owner of such identity on the basis of absolute rights recognized under the law, i.e. the rights to privacy and publicity under the Constitution, rights to names under the Civil and Commercial Code, rights to registered trademark and protection against passing off, or moral rights under the copyright law. Nonetheless, proving damage for the purpose of claiming compensation under the tort law is seriously problematic because the identity owner has the burden of proof to provide supporting reasons and evidence for enforcing its rights, which are disputed by an infringer. In other words, the tort law may alleviate the problem to only a certain extent where the damage is obvious. Therefore, application of the said law is not effective in handling the problem fairly. It can be said that the Thai laws on protection of the identity are rather insufficient for solving the problem of unlawful commercial exploitation.