The Attorney General is right in saying that the complaint by a cabinet minister against the leader of the opposing party is not a priority. The criminal libel law is becoming an added task for the Office of the Attorney General and the Samoa Police Service.

Just this week, the Samoa Police Service made the call to make submissions so the criminal libel law is repealed. It is understandable why the law was brought into being in the first place but the law in Samoa does provide an avenue to deal with defamatory comments through the civil courts.

This is becoming a hassle for the police in investigating claims of defamation when that energy and resources can be diverted elsewhere. It could be better used in the war on drugs. We just had a drug fiend sentenced again and he was caught with narcotic methamphetamine. This goes to show that there are bigger issues for the police to deal with than look at defamation.

Similarly, the Office of the Attorney General is currently having to work on limited resources. A senior prosecutor just called it a day last week and has moved onto private practice. This means that the Office of the Attorney General is already overloaded. There are more cases being brought to the court and this requires the full attention of the Office. And lest we forget, justice delayed is justice denied.

The criminal libel law allows anyone to make a complaint against another individual on the basis that he thinks that the information uttered towards them is false and therefore defamatory. In Samoa, this is a criminal offence but in most jurisdictions around the world, the civil courts deal with the matter including the determination of the compensation that is needed to be paid out.

Samoa withdrew libel from its criminal code in 2013 as a media reform initiative. However, at the end of 2017, Parliament voted to revive its criminal libel law under section 117 (A) of the Crimes Act 2013, despite opposition from media freedom advocates. A person found guilty of violating this law faces a three-month prison term.

Many academics have found the manner in which the law was introduced to be problematic as there was no consultation done. Then Prime Minister Tuilaepa Sailele Malielegaoi had argued that there was no need for consultation and getting the views of the public because it was a re-introduction of an old law. A law Samoa inherited from New Zealand when criminal libel laws were practiced in the Land of the Long White Clouds.

Over the years the law had been used by many politicians to threaten the media however between 1962 and 2013 only one case has been brought to the court which was by former PM Tofilau Alesana Eti against the Samoa Observer. The matter was stayed after the PM passed away. 

The law is also problematic because it restricts the freedom of speech for many Samoans and freedom of speech is a right enshrined in the Constitution of the Samoa. Repealing this law would benefit many Samoans. The law was brought back to target anonymous bloggers however there is no practicality in that because how do you sue or charge someone whose identity is not known.

The law also targets media freedom in our country and everyone knows the role of the media in a democracy which is to be a watchdog.

If the criminal libel law remains and if the Government feels that way then they might want to think about boosting the numbers in those departments, the police and the Office of the AG. A separate department is needed within the police force to deal with these matters. For now, the police just do not have the manpower.

Politics is a different animal altogether and there would be remarks made targeting politicians by politicians. It happens on a weekly basis in Samoa where one party holds its press conferences and makes remarks against the other party and its members. It is bound to become a case of he said and she said with the involvement of the law enforcement agencies.

We also have to remember now that the campaigns for the Vaimauga No.3 by-election is on and there will be comments made. However, it is up to the candidates and the public to know what is defamation. Not everything is defamatory.

A defamatory statement is a false statement of fact that exposes a person to hatred, ridicule, or contempt, causes him to be shunned, or injures him in his business or trade. Statements that are merely offensive are not defamatory for example a statement that Sole smells badly would not be sufficient. Courts generally examine the full context of a statement's publication when making this determination.

In rare cases, a plaintiff can be “libel-proof”, meaning he or she has a reputation so tarnished that it couldn’t be brought any lower, even by the publication of false statements of fact. In most jurisdictions, as a matter of law, a dead person has no legally-protected reputation and cannot be defamed.

Defamatory statements that disparage a company's goods or services are called trade libel. Trade libel protects property rights, not reputations. While you can't damage a company’s "reputation," you can damage the company by disparaging its goods or services.

Because a statement must be false to be defamatory, a statement of opinion cannot form the basis of a defamation claim because it cannot be proven true or false.

We also urge politicians to make statements which are factual and non-defamatory. Statements even in parliament should be well researched and backed with evidence. The GridMarket scenario in parliament is a good example.

Remember a little knowledge is a dangerous thing and it will lead to the empty vessels making the most noises and sometimes these noises will not be factual and very defamatory. Our politicians also have to remember that their voters and the people they represent hang onto each word by a thread.