An Auckland University law academic says Samoa’s criminal libel law under which a prominent journalist has been charged should be repealed.

Lagi Keresoma, the first female president of the Journalists Association of Samoa (JAWS) and editor of Talamua Online, was charged under the Crimes Act 2013 on Sunday after publishing an article about a former police officer, whom she asserted had sought the help of the Head of State to withdraw charges brought against him.

JAWS has already called for the criminal libel law to be scrapped and Auckland University academic Beatrice Tabangcoro told RNZ Pacific that the law was “unnecessary and impractical”.

“A person who commits a crime under this section is liable on conviction to a fine not exceeding 175 penalty units or imprisonment for a term not exceeding 3 months,” the Crimes Act states.

JAWS said this week that the law, specifically Section 117A of the Crimes Act, undermined media freedom, and any defamation issues could be dealt with in a civil court.

JAWS gender representative to the International Federation of Journalists (IFJ) said Keresoma’s arrest “raises serious concerns about the misuse of legal tools to independent journalism” in the country.

Lagipoiva Cherelle Jackson called on the Samoan government “to urgently review and repeal criminal defamation laws that undermine democratic accountability and public trust in the justice system”.

Law removed and brought back
The law was removed by the Samoan government in 2013, but was brought back in 2017, ostensibly to deal with issues arising on social media.

Auckland University’s academic Beatrice Tabangcoro told RNZ Pacific that this reintroduction was widely criticised at the time for its potential impact on freedom of speech and media freedom.

She said that truth was a defence to the offence of false statement causing harm to reputation, but in the case of a journalist this could lead to them being compelled to reveal their sources.

The academic said that the law remained unnecessary and impractical, and she pointed to the Samoa Police Commissioner telling media in 2023 that the law should be repealed as it was used “as a tool for harassing the media and is a waste of police resources”.

Tonga and Vanuatu are two other Pacific nations with the criminal libel law on their books, and it is something the media in both those countries have raised concerns about.

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

In a landmark decision, the Supreme Court has ruled that this law does not contravene the provisions of Section 46 which provides for freedom of expression.

The decision is a serious warning to offending users of social media and the internet that they might find themselves with fines of up to K1 million (NZ$430,000), or jail terms of between 15 and 25 years.

A Supreme Court panel comprising Chief Justice Sir Gibbs Salika and Justices Les Gavara-Nanu, David Cannings, Kingsley Allen David and Derek Hartshorn made this determination in Waigani on Friday.

The constitutional reference was made by National Court judge Teresa Berrigan during the trial of Kila Aoneka Wari, who was charged with criminal defamation under section 21 (2) of the Cybercrime Code Act 2016.

Judge Berrigan then referred for Supreme Court interpretation on whether Section 21 contravened the Freedom of Expression provision of the National Constitution.

Reading the judgment on behalf of his fellow judges, Sir Gibbs said: “We (Supreme Court) consider there is a clear and present danger to public safety, public order and public welfare if publication of defamatory material by use of electronic systems or devices were allowed to be made without restriction, including by criminal sanction.”

Sir Gibbs said the court had determined that the regulation and restriction of the exercises of the right to freedom of expression imposed by section 21 (2) of the Cybercrime Code is “reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.”

‘Necessary’ for public safety
Sir Gibbs said the court was satisfied that the first, second and third interveners had discharged the burden in showing that section 21 (2) of the Cybercrime Code complied with the three requirements of section 38 (1) of the Constitution in that:

•  FIRST, it has been made and certified in accordance with section 38 (2) of the Constitution.
•  SECONDLY, it restricts the exercise of the right to freedom and expression and publication that is “necessary” for the purpose of giving effect to the public interest in public safety, public order and public welfare; and
•  THIRDLY, it is a law that is reasonably justifiable in a democratic society having a proper respect to the rights and dignity of mankind.

“We conclude that no, section 21 (2) of the Cybercrime Code Act is not invalid. Although it (Cybercrime Code Act) restricts the exercise of the right to freedom of expression and publication in section 46 of the Constitution it is a law that complies with Section 38 of the Constitution and the restriction it imposes is permissible under section 46 (1) (C) of the Constitution.

The questions that Justice Berrigan referred to the Supreme Court were:

•  DOES section 21(2) of the cybercrime Code Act regulate or restrict the right of freedom of expression and publication under section 46 of the Constitution?
•  IF yes to question 1, does section 21 (2) of the Cybercrime Code Act comply with section 38 of the Constitution?
•  IS section 21(20 of the Cybercrime Code Act) invalid for being inconsistent with section 46 of the Constitution?

The court answered yes to questions and one and two and answered no to question three.

The court also ordered that each intervener will bear their own costs.

Wari is the fourth intervener in the proceedings.

Others are Attorney-General Pila Niningi (first intervener), acting public prosecutor Raphael Luman (second intervener), Public Solicitor Leslie Mamu (third intervener).

Section 21(2) of the Cybercrime Code Act is the law on defamatory publication.

It makes any defamatory publication using any electronic device as an offence with a penalty of K25,000 to K1 million fine, or imprisonment not exceeding 15 to 25 years.

Boura Goru Kila is a reporter for PNG’s The National. Republished with permission.

Article by AsiaPacificReport.nz

North Fly MP James Donald yesterday made an appearance in Papua New Guinea’s Waigani Committal Court to face cyber crime charges for allegedly publishing defamatory materials against a lawyer and the management team of OK Tedi River Development Foundation.

Magistrate Garry Unjo, reading the MP’s charges, said Donald, from Gasuke village in North Fly district in Western Province, had allegedly published defamatory materials against Young and Williams principal lawyer Greg Sheppard and Ok Tedi River Development Foundation (OTRDL) chairman Steven Bagari, and Samson Jubi.

Donald was charged with a count each of attempting to pervert the court of justice, and publishing defamatory materials.

Police alleged that Donald had posted a false and misleading defamatory article titled “Where is the money?” on his personal Facebook page on July 26, alleging that Sheppard and Bagari had misappropriated more than K250 million ($110 million) in funds that belonged to the Ok Tedi landowners.

Other articles also signed and approved for release by him were allegedly published in the two daily newspapers, the PNG Post-Courier and The National.

According to the police summary of facts, Donald had allegedly posted defamatory materials against Sheppard, Bagari and Jubi intentionally to tarnish the reputation of the three men without factual evidence to support his claims on Facebook.

Police further alleged that Donald’s defamatory publications were made despite him knowing there was a writ of summons, filed by Young and Williams Lawyers on behalf of OTFRDL in the High Court of Singapore (HC/S628/2020 between OTFRDL and others, Vs James Donald).

His alleged accomplice, Phillip Baindridge, is the chairman of PNG Sustainable Development Progamme (PNGSDP).

The summons sought to retrieve funds worth more than K250 million (NZ$110 million) back to PNG and put into the control of foundation and the people affected.

Trevor Wahune is a University of Papua New Guinea journalism graduate and reporter on the OPNG Post-Courier.

Article by AsiaPacificReport.nz

Timor-Leste’s Journalist Association (AJTL) and journalism students marched through the streets of the capital Dili today calling on the government to scrap plans to change the law to make defamation a criminal offence.

Under the proposed law journalists could face jail sentences.

Opponents of the proposed law say it is an attack on democracy in a country with the highest world press freedom ranking in the region.

Words by Bob Howarth, image by AJTL.

READ MORE: Timor-Leste: Can the criminal defamation law in Timor-Leste be stopped?

• Ramos-Horta slams criminal libel plan

Article by AsiaPacificReport.nz

Rappler chief executive Maria Ressa and former researcher-writer Reynaldo Santos Jr have filed a motion for partial reconsideration, appealing to Manila Judge Rainelda Estacio-Montesa to reconsider her decision that convicted the journalists of cyber libel.

Ressa and Santos’ lawyers from the Free Legal Assistance Group (FLAG) submitted their 132-page motion to the Manila Regional Trial Court (RTC) Branch 46 via email yesterday afternoon.

Copies were also mailed to the court and the prosecutors. The Manila RTC is still on lockdown due to possible exposure to personnel who were in contact with coronavirus-positive relatives.

READ MORE: ‘I’m scared to go to jail, I’m not as fearless as Maria’

The motion cited at least 13 errors committed by Judge Montesa in her June 15 verdict and accused her of malice.

In the motion, FLAG argued several key points and raised issues still largely unexplored with the very young, and still very contested, Philippine Cybercrime Law.

Among these are the following:

• Complainant Wilfredo Keng as public figure
• Malice
• Republication
• Prescription period of libel
• Intervention of the UN Special Rapporteur for Freedom of Expression, Professor David Kaye
• Imposition of fines instead of imprisonment for libel

The motion for reconsideration (MR) did not mince words in criticising Judge Montesa’s decision, saying “the court has resorted to language that borders on the sarcastic and, at times, crosses over to the partial”.

Free speech legal protection
FLAG asked the court to consider Philippine jurisprudence that fiercely protects free speech and apply them to the cybercrime law.

“The self-distancing by the court of this case from the issue of press freedom is so pronounced as to be unmistakable. In the process of that self-distancing, however, the fundamental principles of constitutional law on ‘content-based restrictions’ that have become hornbook law have been ignored,” said the MR.

Libel in the Revised Penal Code presumes malice in defamatory imputations even if they are true. Over the years, Philippine jurisprudence has made a distinction between a public figure and a private person, applying an actual malice rule for public figures.

It means that for a public official, malice on the part of the accused must be proven and not presumed.

Because the bar for determining malice is so high, even erroneous statements are not considered malicious – as long as there is failure to prove a “high degree of awareness of probable falsity”.

Judge Montesa ruled that because Wilfredo Keng was a private person, then malice was presumed.

FLAG said Keng was considered a public figure, citing the case Ayer vs Capulong which said a public figure was “anyone who has arrived at a position where public attention is focused upon him as a person”.

Public figure definition
“Its definition of a public figure is important to this case, as it clearly establishes that even non-governmental officials are considered public figures,” said FLAG, arguing that the rule on actual malice must be applied in the case.

Keng’s complaint was based on a 2012 story linking him to the late chief justice Renato Corona, who faced an impeachment trial.

Judge Montesa lectured the journalists on the supposed failure to verify information in an intelligence document that linked Keng to illicit activities in that story, saying that they were being reckless.

Before the verdict, United Nations Special Rapporteur on the Right to Freedom of Opinion and Expression Professor David Kaye submitted an unsolicited expert’s brief, making a case for how libel should be decriminalised, and how the court must prudently apply the cybercrime law while libel remains a criminal offence.

Judge Montesa merely “noted” Kaye’s brief, which, in the judiciary, means it was just acknowledged for the record.

International law principles
“With due respect, considering the opinion of Professor Kaye in his Brief would allow the court to arrive at a judgment that is more in accord not only with the facts and evidence presented during the trial but also with international law principles that govern the country’s commitments under the International Covenant on Civil and Political Rights (ICCPR),” said the motion.

As a final argument, FLAG said Judge Montesa should have been guided by jurisprudence, and by the Supreme Court’s own circular, that if it can, courts must impose only fines rather than imprisonment on libel cases.

Ressa and Santos were sentenced to a maximum of 6 years in jail.

Article by AsiaPacificReport.nz

Timor-Leste’s Minister of Justice plans to present to the Council of Ministers a proposal to include criminal defamation in the country’s penal code.

The International Federation of Journalists (IFJ) and its affiliate the Timor-Leste Press Union (TLPU) have protested against the move that would undermine press freedom and public interest journalism, reports IFJ.

The proposal to introduce a law of criminal defamation to Timor-Leste’s penal code (Articles 187-A to 187-F) stipulates that any person who publicly states and publishes through social media “facts” or “opinions” that may offend the honour, good name and reputation of a current or previous member of government, church official or any public official can be prosecuted and punished with up to three years in prison.

READ MORE: Ramos-Horta slams criminal libel plan – threat to rights in Timor-Leste

Media rights groups say the new law will have far reaching consequences as it criminalises actual expressions of one’s opinion and even criminalises a third person sharing this information.

The IFJ has addressed its concerns in a letter to Prime Minister Taur Matan Ruak.

The proposed law inadequately defines “offences” and places the legal burden of proving that a story is true upon the journalist and/or publisher.

The offences would carry between one to three years’ imprisonment. A person who offends against a dead person can also be punished with a prison sentence.

TPLU says: “This bill contradicts the Timor-Leste constitution in articles 40-41 concerning freedom of expression and freedom of the press. We from TLPU condemned this law.

“The government is trying to use a national emergency opportunity to endorse this bill with the aim of punishing those who berate leaders and politicians, but in our opinion this is to criminalise journalists and all citizens who criticize the government.”

The IFJ said: “We urge the government of Timor-Leste to take the necessary steps to ensure the proposal does not make it into the penal code.

“If laws to criminalise defamation are adopted this will mark a retreat from a commitment to democracy and an open society which has been to the very great credit of Timor-Leste.”

Former national president and Nobel Prize winner Jose Ramos-Horta and former prime minister and leader of the majority Fretilin party, Dr Mari Alkatiri, earlier this week criticised the draft law being “rushed” through Parliament and its impact on press freedom.

Article by AsiaPacificReport.nz

Former East Timorese President José Ramos-Horta says it is not opportune for the government to be debating the possible criminalisation of defamation, with the risk of jeopardizing citizens’ rights.

Instead, he says, the Timor-Leste government should concentrate on issues like the economy.

“I don’t think it is a priority issue for the government. Instead of the government and the parliament wasting energy and time discussing new laws, which will constrain our democracy, it is better that they focus on the dynamisation of our economy that is completely paralysed.” he told the Portuguese news agency Lusa.

READ MORE: Criminal defamation in Timor-Leste

Ramos-Horta reacted yesterday to the news advanced by Lusa on Saturday that the Timorese government wants to criminalise defamation and injuries in response to situations of offence of honour, good name and reputation of individuals and entities, in the media and social networks.

The proposed measures, introduced in a draft decree-law to amend the Penal Code, prepared by the Ministry of Justice and to which Lusa had access, provide for prison sentences for defamation and injuries, for the crime of offending the prestige of a person. collective or similar, and the crime of offending the memory of a deceased person.

“I appeal to the Prime Minister to tell the government that we have other priorities. Let us give our society total freedom to speak and criticise,” said Ramos-Horta.
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“It is what the Prime Minister must do, to show that he is above any suspicion of wanting to hamper public opinion and citizens’ rights,” he stressed.

‘Draconian’ laws
Ramos-Horta recalled that some laws already passed in the media sector were considered “draconian” at the international level, contributing to lower Timor-Leste’s rating in terms of press freedom.

“I don’t see how this new law will help freedom of expression in Timor-Leste and the name of Timor-Leste as a full democracy”, he stressed.

The Timorese historical leader also criticised the fact that the proposal mixes social networks – “which are almost like a coffee conversation” with the media, even if using new technologies and platforms.

“I do not see that over the years the proliferation of social networks has affected in any way, the security, peace or development of the country and the dignity or prestige of the government,” he said.

“Governors are individuals like everyone else. It is not because they are President, Prime Minister or deputies that they are suddenly untouchable people,” he said.

The Nobel Peace Prize winner says that it is “preferable for the good name of those who are open to government” and to act only in cases where “incitement to racial violence or hatred” is taken.

Parliamentary assaults
As an example, he mentions the incidents last month in the Timorese National Parliament, with assaults between deputies, overturned tables, shouting, shoving and the intervention of police officers.

“There has been no greater unrest than what has happened in Parliament. The media has faithfully reported what happened, as it reports bombastic statements that some leaders have made against each other, from different sides,” he said.

“If we do not want the media and social networks to report embarrassing things that do not dignify, let us behave with greater civility,” he said.

Even so, Ramos-Horta asked journalists to be more careful to prove facts before reporting the news, noting that there have been such examples in the country’s media.

The Pacific Media Centre republishes Antonio Sampaio‘s articles with permission.

Article by AsiaPacificReport.nz

By Tempo Timor in Dili

Proposals to make defamation a crime in Timor-Leste have sparked public debate about a controversial law that could see people jailed for their opinions on popular platforms like Facebook.

Supporters of criminalising defamation argue that the growing instances of leaders being cursed and abused on Facebook – with more than 400,000 users in a population of 1.3 million – is “not public debate”.

Opponents claim the proposed law will limit media freedom and prevent the expression of public opinion that has so far been protected by law.

READ MORE: Bob Howarth’s Pacific Journalism Review article on Timor-Leste media

On December 6, 2005, the Constitutional Government ratified the Criminal Law Act, including a section which defined defamation as a crime.

This led to civil society protests to then President Xanana Gusmão in January 2006.

The fourth Constitutional Government led by Prime Minister Xanana had planned “to action” defamation into criminal law.

Then on December 12, 2018 the General Prosecutor’s Office of Timor-Leste used Indonesian Criminal Code to criminalise defamation, thus targeting a journalist who had reported on issues raised over a prison guard uniforms contract

Draft criminal law
At the same time, a draft criminal law on defamation was prepared by the Constitutional Government. But after being widely criticised by civil society, the new Timor-Leste Penal Code did not include defamation as a crime.

The court tried former Minister of Justice Lucia Lobato in 2012. She was convicted of corruption and sentenced to 18 months jail.

President Taur Matan Ruak pardoned her in August 2014.

Even though the Criminal Code does not apply to defamation, there is still one section “denuncia Calunioza”, which presents a threat to the work of journalists.

The Timor-Leste Prosecutor’s Office investigated a Timor Post newspaper journalist after the Prosecutor’s Office received a complaint from the leader of the sixth Constitutional Government.

The court tried and sentenced the reporter because of the news he wrote.

After government changes and changes in information technology became increasingly advanced, the campaign to criminalise defamation emerged again in the eighth Constitutional government led by Prime Minister Taur Matan Ruak.

Press Council critical
The president of the Press Council of Timor-Leste (Consuelo de Impreza – CI), Gil Guterres, strongly disagrees with the criminalisation campaign.

Guterres said that by criminalising defamation, Timor-Leste would undermine its international standing, and it would be a betrayal of the constitutional commitment to establish Timor-Leste as a state based on due process.

He said that when the reason used to criminalise defamation was only because people “cursed and insulted” the leaders, it was not justified.

The law was not only to protect the leaders – or “Maun Bo’ot sira” or “Big Brother” – but to protect all citizens.

“If you curse and insult them in the ‘discurso de ódio‘ (hate speech) category, we don’t need new laws anymore. The law of ‘denúnsia Kalunioza’ already exists,” he said.

Guterres said criminalisation of defamation would have a “chilling” affect on journalists. They would be afraid to be critical or conduct investigative journalism because of the threat of a prison sentence.

Article by AsiaPacificReport.nz

By RNZ Pacific

Democracies across Asia and the Pacific are struggling to resist disinformation and protect press freedoms, according to a new report.

Reporters Without Borders released its 2019 index last Thursday showing an increase in self-censorship of journalists in parts of the Pacific last year.

Although Pacific Island countries generally rose in press freedom rankings, Reporters Without Borders was also concerned about an absence of editorial independence.

READ MORE: Pacific ‘bright spots’ amid World Press Freedom Index Asian warnings

In Papua New Guinea, it said journalists faced intimidation, direct threats, censorship, prosecution and bribery attempts.

“All this was particularly visible during the Asia-Pacific Economic Cooperation summit in the capital, Port Moresby, in November 2018, when journalists who wanted to raise sensitive issues were censored by their bosses and the government was accused of accommodating the Chinese delegation’s demands for certain journalists to be excluded although they had obtained accreditation,” the RSF 2019 index said.

-Partners-

The group said self-censorship was also on the rise in Tonga, where politicians have sued media outlets and keeps tight controls over state media.

“This was particularly so at the state radio and TV broadcaster, the Tonga Broadcasting Commission (TBC), where two senior editors were sidelined under pressure from the government.

Suppressing editorial independence
“In 2018, the government gained full control over the TBC, suppressing all vestiges of editorial independence.”

Elsewhere, Reporters Without Borders said balanced election coverage in Fiji and the acquittal of Fiji Times journalists on sedition charges was an “encouraging victory”.

“The relatively pluralist and balanced coverage of the 2018 parliamentary elections – the second since the 2006 coup d’état – confirmed the Fiji media’s liveliness and spirit of resistance.”

In Samoa, the group said the country was “in the process of losing its status as a regional press freedom model”.

RSF said defamation laws had given Prime Minister Tuilaepa Sailele Malielegaoi a licence to attack critical journalists.

In Solomon Islands, similar defamation laws were criticised by RSF as intimidating journalists and encouraging media self-censorship

“Indonesian diplomatic pressure for an end to any form of support for West Papuan separatism could pose a threat to the public debate.”

It also praised public broadcaster Solomon Islands Broadcasting Corporation (SIBC) as playing a “vital role in keeping the population informed by radio” in a country with low literacy rates.

This article is republished under the Pacific Media Centre’s content partnership with Radio New Zealand.

Article by AsiaPacificReport.nz

Pacific Media Watch Newsdesk

The Paris-based global media advocacy group Reporters Without Borders (RSF) has condemned yesterday’s arrest of Maria Ressa, editor of the independent Manila-based news website Rappler, on a “cyber libel” (defamation) charge.

It is referring the Philippine government’s “repeated persecution” of this journalist and her website to the United Nations Secretary-General.

Chosen as one of Time Magazine’s “persons of the year” in 2018, Ressa was spending last night in detention after being arrested at Rappler headquarters by agents from the National Bureau of Investigation (NBI) armed with an arrest warrant issued on the basis of online defamation case filed last week.

READ MORE: Rappler CEO Maria Ressa arrested for ‘cyber libel’

“It seems that her arrest was left until the end of the afternoon with the deliberate aim of keeping her in detention overnight,” RSF said.

According to her colleagues, the judge said there was no time to handle the bail request until today.

-Partners-

The Philippine Justice Department filed the case against Ressa and Rappler on February 6 over an article published in 2012 about alleged ties between a Philippine businessmen and the then president of the country’s Supreme Court.

The charges, which carry a possible 12-year jail sentence, were brought under a cyber crime law that had not yet taken effect when the article was published.

‘No place in prison’
“Maria Ressa has no place in prison and the judicial persecution to which she is being subjected is becoming increasingly unacceptable,” RSF secretary-general Christophe Deloire said.

“Digging up an old case that was dismissed in February 2018 is absolutely absurd and confirms that this is not justice but an attempt to gag a media outlet and editor recognised internationally for their professionalism and independence.”

Deloire added: “We are asking the UN secretary-general to intercede as quickly as possible to end this harassment. At the same time, we ask the court that handles this case to dismiss all the charges against Maria Ressa and Rappler.”

This is the sixth charge to be brought against Ressa in more than a year of systematic judicial harassment.

Four charges of tax evasion and failing to file income tax returns were brought against Rappler and Ressa last November. A fifth charge, described by RSF as “completely spurious”, was brought in December.

Ressa is one of the 25 members of an international panel created at RSF’s initiative last year that drafted an international Declaration on Information and Democracy.

On the basis of the declaration, the leaders of 12 democratic countries launched a political process on November 11 aimed at providing democratic guarantees for news and information and freedom of opinion.

Media freedom awards
As well as being one of Time Magazine’s “persons of the year,” Ressa also received the 2018 Press Freedom Award from the Committee to Protect Journalists and has become a symbol of the Philippine media’s fight against intimidation by President Rodrigo Duterte.

The Philippines is ranked 133rd out of 180 countries in RSF’s 2018 World Press Freedom Index.

Press freedom groups around the world, including New Zealand’s Pacific Media Centre/Pacific Media Watch, condemned the persecution, with Pen America saying the arrest showed the Duterte government was “desperate” to silence critics.

“Maria Ressa, along with her colleagues at Rappler, has fearlessly exposed the abuses of the Duterte government, even in the face of relentless harassment,” Pen said.

“By arresting her on these absurd and baseless charges, concerning an article published 7 years ago and prior to the enactment of the very law under which she is being charged, the Philippines government has exposed how desperate it is to silence critics and stamp out independent journalism in the country.

“We call on the Duterte government to immediately drop these charges and release Ressa. Investigative journalism is not a crime.”

#Journalismisnotacrime

Article by AsiaPacificReport.nz

Pacific Media Watch Newsdesk

Reporters Without Borders (RSF) has condemned the latest “absurd charges” that the Philippine Justice Department is planning to bring against the news website Rappler – this time libel charges in connection with an article posted in 2012 – and has called for the case to be dismissed.

The Justice Department has announced that Rappler, its editor and CEO Maria Ressa, and one of its former reporters, Reynaldo Santos Jr., are to be charged over a 2012 article about alleged ties between businessmen Wilfredo Keng and the then president of the country’s Supreme Court.

The charges, which carry a possible 12-year jail sentence, are based on the complaint that Keng brought five years later, in October 2017, under a cyber-crime law that was enacted several months after the article’s publication.

READ MORE: DOJ to indict Rappler for cyber libel

The National Bureau of Investigation dismissed the complaint in February 2018 because the law was not retroactive and because of a one-year moratorium on filing complaints, but reversed its decision the following month.

The Justice Department is reviving the case on the grounds that a principle of “continuous publication” can be applied to websites.

-Partners-

‘Grotesque persecution’
“The judicial harassment used by President Rodrigo Duterte’s administration to persecute Rappler’s journalists is becoming grotesque,” said Daniel Bastard, head of RSF’s Asia-Pacific desk.

“It would be almost laughable if it weren’t for the terrible judicial precedent that this decision would set, if upheld. We urge the court that handles this case to show independence and wisdom by dismissing it once and for all.”

The authorities have been systematically targeting Rappler for more than a year with the aim of intimidating its journalists. Four charges of tax evasion and failing to file income tax returns were brought against Rappler and Ressa in November.

A fifth, “completely spurious”, charge was brought in December, said RSF.

In January 2018, the Securities and Exchange Commission (SEC) announced that it was revoking Rappler’s licence on the grounds that it had violated a ban on foreign ownership of media outlets, spuriously claiming that, by issuing Philippine Depositary Receipts to raise funds, it had sold some of its stock to foreign investors.

RSF referred this “unacceptable attack on media independence” to various international bodies.

In response to Rappler’s appeal against the SEC decision, a court ruled in July that the website should be allowed “reasonable time” to resolve any dispute about its financial structure.

The Rappler reporter assigned to covering the Malacañang presidential palace was meanwhile denied entry to the palace in February 2018 on Duterte’s personal orders.

The Philippines is ranked 133rd out of 180 countries in RSF’s 2018 World Press Freedom Index.

The Pacific Media Centre collaborates with Reporters Without Borders.

Article by AsiaPacificReport.nz

Let’s face it. For every beginning there is an end. And for every end there is a reward to be extended, the quality of which would depend entirely on how keenly persevering the attempt would be.

Still, now that Christmas is behind us, and another New Year is moving along steadily as we all knew it would, perhaps the time is right to get back to that rather eager grindstone, and let’s start hacking away at those fretful scruples, one more time.

So let’s begin with the story titled “Parliament brings back Criminal Libel” which Prime Minister, Tuilaepa Sailele Malielegaoi, had for months been agonising over to the point where he literarily ended up making a fool of himself, to the delight of virtually everyone else.

Published in the Samoa Observer on 20 December 2017, the story said: “Parliament yesterday endorsed the government’s plan to re-introduce the Criminal Libel Act into the law books of Samoa.

“Abolished by the ruling Human Rights Protection Party in 2013, Members of Parliament unanimously agreed to bring back the law, when Parliament reconvened for the last time this year at Tuana’imato yesterday, 21 December 2017.”

Amazing!

The story went on to say: “The bill passed the first, second and third reading, within less than an hour.”

Wonderful!

‘Ghost writers’
It continued: “Prime Minister, Tuilaepa Sa’ilele Mailielegaoi, has been instrumental in bringing back the law, as part of a government-driven effort to clamp down on ‘ghost writers’ such as ‘Ole Palemia’ and others who use fake social media pages, to attack members of the public.”

Now let’s wait a second. Who were these so-called ‘ghost writers’ that Prime Minister Tuilaepa was talking about back there? Indeed, who is the chap called ‘Ole Palemia.’”

It appears that neither Prime Minister Tuilaepa nor anyone else knows!

In fact, the story doesn’t say.

All it says is that: “The Speaker of Parliament, Leaupepe Tole’afoa Fa’afisi, said the re-introduction of the law was expedited due to the urgent nature of the issues it sets out to deal with.”

Urgent? How urgent?

If the re-introduction of the law was urgent, why is it that the entire police force had not been activated with the idea of turning every stone upside down – pardon the pun – to ensure that this joker named ‘O le Palemia’ whom it seems everyone is afraid of, is found and be thrown in jail where he rightly belongs?

Now wait.

Joining the circus
We’ve got the Minister of Justice and the Courts Administration, Fa’aolesa Katopau Ainuu, joining the circus.

As the joker who introduced the Criminal Libel Bill in Parliament, he said: “The law is not new. This amendment is in relation to defamation.”

He went on to explain: “Currently, there is a clause to have this case before the Court for a civil claim. The amendment today is to add on the criminal prosecution for defamation.”

“People have asked as to why we need to reinstate the criminal libel when the matter can be dealt with through civil.”

Fa’aolesa also said: “In a civil claim, there is a need for lawyers to represent your case and most of our people cannot afford a lawyer; whereas (with) Criminal Libel the matter can be prosecuted by the police and you would not need a lawyer.”

Now isn’t that wonderful!

Is he saying that if you were ‘O le Palemia’, you could go on and accuse Samoa’s political leaders of all sorts of alleged criminal activities including being corrupt and fraudulent, and you would still not be prosecuted for doing so by the police?

Legal opinions
According to the Minister of Justice Fa’aolesa, the Law of Criminal Libel was “abolished back in 2013 based on legal opinions of some lawyers.”

“However, the government sees the need to reinstate this law following requests by members of the public who want to pursue cases before the court, but cannot afford a legal counsel.”

He said: “The Bill amends the Crimes Act 2013 with introduction of a new Part 9A for crimes against a person’s reputation.”

“This Part is ‘False statement causing harm to a person’s reputation.”

“The rationale for introducing the offence is to address harm done to a person’s reputation by another person who publishes false information about that person.”

“This is similar to defamatory libel and although civil proceedings for defamation are available to the public, the reality is, not all Samoans have access to these proceedings as not all are able to afford legal services required for such proceedings.”

He’s probably right.

Criminal complaint
Later still, on 8 May 2008, the Attorney General of the government of American Samoa, Fepulea’i Authur Ripley, filed a claim in the District Court of American Samoa naming Katopau Ainu’u, as the defendant in a criminal complaint.

Katopau was accused of having committed two crimes, one of Embezzlement and the other of Criminal Fraud. On the charge of Embezzlement, court documents showed that “on 3 November 2006, the Defendant knowingly misappropriated funds which had been entrusted to him in violation of ASCA 46.4104, a class C felony punishable by imprisonment for up to seven years, a fine of up to double the amount gained by the crime, or both.”

On the charge of Criminal Fraud, court documents showed that “on 3 November 2006, the Defendant knowingly and wilfully obtained money by the use of a scheme to defraud by false pretences.”

To that extent, the Defendant agreed to represent the victims(s) as an attorney, in a matai case; on that day, Defendant took payment from victim(s) as payment to represent victim(s) in a count case, while at the same time knowing that the Defendant was moving off-shore …”

Now 10 years later, in March 2016, Samoa held its general elections and the defendant, Katopau Ainu’u, who was now holding the matai title of Fa’aolesa, ran for Parliament and he was elected.

What’s undisputed though is that Fa’aolesa Katopau Ainu’u had worked as a lawyer in American Samoa at one point in time. Later when he moved to Samoa, he entered Parliament and became the Minister of Justice.

Ghosts of the past
Later, when Prime Minister Tuilapea chose his cabinet, he named Fa’aolesa the Minister of Justice, and shortly afterwards the ghosts of the past, having stirred into life, emerged to give both Fa’aolesa and Tuilaepa a hard time.

Asked for a comment on the reports, Tuilaepa said he was “shocked” by them. “I have spoken with the Minister (concerned) who is (also) shocked (by them).”

Tuilaepa revealed that Fa’aolesa “has contacted his lawyer in American Samoa who is also shocked about it, and (from what he’s been told) the matter had been resolved a long time ago but it has been dug up again.”

Shocked?

The editorial that was published in the Samoa Observer at the time was titled: Prime Minister Tuilaepa’s gift from American Samoa.

What is the meaning of the word “shock” these two are talking about here? Please don’t ask me to try and explain anything.

All I can say is that when this newspaper asked Fa’aolesa for a comment, he said he was unaware about the warrant; he then asked for a copy so that he could look at it before he could comment.

Copies of the “warrant” were sent to him but by press time that night he had not responded.

Investigation
Over there in American Samoa at the time, the current Attorney-General, Talauega Eleasalo Ale, said his office was conducting an investigation into the matter.

“This is something that happened before I came into office,” he said. “(We) are definitely looking into it.”

He also said all he knew was that “the matter is still valid and apparently it’s still in the books of the Court, and therefore it is still outstanding.”

“It’s a matter that’s up to the law enforcement and the Police to enforce if the person is in our jurisdiction.”

“(As for) the background and reasons for the warrant, those facts are still out there. I don’t know what happened.”

He explained: “The warrant is valid and if he is in American Samoan jurisdiction he can be arrested by the Police in pursuant to the Court’s warrant.”

Here in Samoa on the other hand, it appears that the embattled Minister of Justice, Courts and Administration, Fa’aolesa Katopau Ainu’u, is a worried man.

He is apparently seeking to quash the outstanding warrant of arrest made against him in American Samoa with the aid of his American Samoan lawyer, he revealed in a telephone interview.

“My lawyer will make a motion to quash the warrant,” he said. “The delay is because they are trying to find the affidavit to support the warrant.”

“There was nothing at the Attorney-General’s office and they are also looking for a copy from the Court.”

Asked if he was going to American Samoa when the matter would be heard in Court, Fa’aolesa said no. “It’s being done by my lawyer,” he said.

“Once I get the results I’ll call you for my official response. In the meantime, I cannot say anything more that might compromise my lawyer’s work.”

No call
To date, Fa’aolesa has not called.

As for Prime Minister Tuilaepa Sailele Malielegaoi, is it possible that he would one day soon, turn his back on his gift, from American Samoa.

Indeed, can the law of Criminal Libel be used to prosecute government officials, who are alleged to have committed fraud and embezzlement, in corrupt ridden Samoa?

Just a thought!

Have a peaceful Sunday Samoa. God bless!

Editorial republished from the Samoa Observer via Pacific Media Watch.

Article by AsiaPacificReport.nz