           Freedom of expression is a fundamental right protected under Article 13(1)(a) of Samoa’s Constitution. Implicit in the freedom under Article 13 is the right to access information and freedom of the press. No one can rely on the freedom of expression or speech to limit or undermine the human rights of others. Article 19 of the ICCPR (which Samoa is a party) provides that freedom of opinion is absolute and should be subject to no restrictions. Freedom of expression on the other are subject to certain restrictions that must be provided by law, necessary for pursuing a legitimate aim in a democratic society, and proportionate. Subject to the above conditions, freedom of expression may be limited in some circumstances and in particular does not protect statements inciting hatred and discrimination against others, particularly by reference to their race, religious belief and gender or sexual orientation. Article 13(2) of Samoa’s Constitution provides that reasonable restrictions and limits may be imposed on freedom of speech and expression in the interests of national security, friendly relations with other States, public order or morals, for protecting the privileges of the Legislative Assembly, for preventing the disclosure of information received in confidence, for preventing contempt of Court, defamation or incitement to any offence. The perception that freedom of expression allows individuals to say whatever they like, to whoever, whenever is a serious misconception. Freedom of expression is subject to restrictions. For example, freedom of expression can be restricted for the protection of the reputations of others from defamatory remarks. Civil defamation is governed by the Defamation Act 1993, while criminal defamation is regulated by the Crimes Act 2013 – section 117A(2) and the Electoral Act 2019 (elections context) – section 90. Determining what is hate speech and speech that is offensive but can be protected is a challenging task. In making the distinction it is important to consider certain factors including intention of persons making statement, the context it was made, intended audience and the particular words and form of communication. Addressing hate speech does not mean limiting or prohibiting freedom of speech and expression. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility, and violence, which is prohibited under international law Freedom of expression is integral to the enjoyment and exercise of other rights including the right to take part in the conduct of public affairs, including the right to vote. State of Human Rights Report 2021 |2