that the purpose of the law of defamation is to strike a balance between the right to reputation and freedom of speech.62 In striking this balance the court stated that63 the defendant (Samoa Observer) had their role as a watchdog in the public interest to expose corruption in holders of political office and in the conduct of public affairs to overstep the mark by not keeping in balance the right of an individual not to be defamed. Although freedom of expression is fundamental, it is important to recognize the right in everyone to their good name and the right not to have their reputation disparaged by defamatory statements made about them by third persons without lawful justification or excuse (emphasis added). Defamation and restrictions on freedom of expression It must be acknowledged that the freedom of expression is a complex right. This is because it is not absolute and can be subjected to restrictions provided by law.64 Therefore, although individuals are free to express their views and opinions about various matters that concern them, it can be restricted on specific grounds, including for the protection of the reputations of others from defamatory remarks.65 Any restriction on freedom of expression that is sought to be justified on the grounds that it protects the reputations of others must have the genuine purpose and demonstrable effect of protecting a legitimate reputational interest.66 (See part on Restrictions and Limitations for further information). The justification of defamation for the purpose or effect of protecting individuals against serious harm to a reputation that they do not have or do not merit cannot be justified. 67 INFORMATION POINT: Legitimate purpose of defamation laws68 It is important that any justification of defamation laws is for a legitimate purpose only such as the protection of the reputation of individuals. Imposing defamation laws cannot be justified if their purpose or effect is to: i. Prevent legitimate criticism of officials and public figures or the exposure of official wrongdoing or corruption; ii. Protect the reputation of the State or nation, as such; iii. Enable individuals to sue on behalf of persons who are deceased; iv. Allow individuals to sue on behalf of a group which does not, itself, have status to sue; or v. Protect subjective feelings or a subjective understanding of the sense of honour. Prior censorship, or restrictions occurring prior to publication, on the basis of defamation, are never permissible.69 62 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 145 A.L.R. 96, cited in Alesana v Samoa Observer Company Ltd [1998] WSSC 1; CP 042 1997 (6 July 1998) http://www.paclii.org/cgibin/sinodisp/ws/cases/WSSC/1998/1.html?stem=&synonyms=&query=tofilau%20eti%20alesana. 63 Alesana v Samoa Observer Company Ltd [1998] WSSC 1; CP 042 1997 (6 July 1998) http://www.paclii.org/cgibin/sinodisp/ws/cases/WSSC/1998/1.html?stem=&synonyms=&query=tofilau%20eti%20alesana. 64 UN HRC, General comment no. 34, Article 19, paras 22-26. 65 See Constitution of Samoa, Article 13(2) and Crimes Act 2013, section117A. 66 Article 19, “Defining Defamation: Principles on Freedom of Expression and Protection of Reputation”, p. 6. 67 Article 19, “Defining Defamation: Principles on Freedom of Expression and Protection of Reputation”, p. 6. 68 Article 19, “Defining Defamation: Principles on Freedom of Expression and Protection of Reputation”, p. 7. 69 Article 19, “Defining Defamation: Principles on Freedom of Expression and Protection of Reputation”, p.5. State of Human Rights Report 2021 | 21