Criminal defamation
Samoa reintroduced criminal defamation in 2017.46 Such move was heavily criticized by many including
some members of the public at the local and international level and the media. According to one media
personality, the reintroduction of criminal libel would be dangerous to media freedom and could be used
to compel journalists to disclose their sources.47 There was also the argument made that the civil action
for defamation serves the same purpose and provides sufficient remedy for damages.48 In the case of
Police v Malele Paulo the court dismissed the argument that civil defamation is sufficient and provided
that “criminal law (which covers criminal libel) is the law that is accessible to all members of the public
especially those who are poor and cannot afford a civil suit”. 49
There is a strong international consensus among international organisations as well as recognition by
international and regional human rights courts of the need to decriminalize defamation laws. The Human
Rights Committee has consolidated such sentiments in its general comment on Article 19 of the ICCPR on
freedom of expression.50 The push to decriminalize defamation laws comes as a result of attempts by
some governments to stifle public debate. International experience provide that defamation laws are
abused in many countries by those in power to limit criticisms made against them and the threat of
imprisonment imposes a profound chilling effect on freedom of expression.51 However, the use of criminal
defamation to address unwarranted attacks on reputation is also still recognized in many countries
including Samoa.52
In countries where criminal libel is still enforced, there have been calls for these countries to take
necessary steps to minimize the potential for abuse or unwarranted restrictions on freedom of expression
and speech. Such steps must conform to the certain conditions including:53
The complainant must prove beyond reasonable doubt that all elements of defamation offence
are present54
Defamation shall not be made out unless it has been proven that the impugned statements are
false and were made with an intention to cause harm to the party complainant
46
See Crimes Amendment Act 2017, No. 20, section 2, https://www.palemene.ws/wp-content/uploads/Crimes-Amendment-Act-2017Eng.pdf, now consolidated under the Crimes Act 2013 section 117A.
47 Mata’afa Keni Lesa, “Media freedom 'at risk' in Samoa”, RNZ (21 December 2017) https://www.rnz.co.nz/international/pacificnews/346675/media-freedom-at-risk-in-samoa.
48 See Tabangacora, B “Ua Se Vaa Ua Tu Matagi: The Revival of Criminal Libel in Samoa” Post graduate paper for Pacific Law and Culture
Conference University of Canterbury July 2018 cited in the case of Police v Paulo [2019] WSDC 3 (25 October 2019) para102,
http://www.paclii.org/cgi-bin/sinodisp/ws/cases/WSDC/2019/3.html?stem=&synonyms=&query=title(Police%20and%20Paulo%20).
49 Police v Paulo [2019] WSDC 3 (25 October 2019) para103, http://www.paclii.org/cgibin/sinodisp/ws/cases/WSDC/2019/3.html?stem=&synonyms=&query=title(Police%20and%20Paulo%20).
50 UN HRC, General comment no. 34, Article 19.
51 UN HRC, General comment no. 34, Article 19, para 47.
52 See Article 19, “Defining Defamation: Principles on Freedom of Expression and Protection of Reputation”, Policy Brief (2017) p. 11,
https://www.article19.org/data/files/medialibrary/38641/Defamation-Principles-(online)-.pdf.
53 Article 19, “Defining Defamation: Principles on Freedom of Expression and Protection of Reputation”, Policy Brief (2017) p. 10,
https://www.article19.org/data/files/medialibrary/38641/Defamation-Principles-(online)-.pdf.
54 The elements of defamation offence include: publishing a statement (1) about another person, (2) that is false (3) with the intention to
cause harm to that person’s reputation – see Crimes Act 2013, section 117A(1).
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