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Samoa Observer Co (Apia) Ltd v Oeti [2020] WSCA 7 (4 September 2020)

IN THE COURT OF APPEAL OF SAMOA
Samoa Observer Company (Apia) Ltd v Oeti [2020] WSCA 7


Case name:
Samoa Observer Company (Apia) Ltd v Oeti


Citation:


Decision date:
4 September 2020


Parties:
SAMOA OBSERVER COMPANY (APIA) LIMITED (Appellant) v OPAPO SOANAI OETI
(First Respondent) and TOAIPUAPUAGA PATRICK (Second Respondent)


Hearing date(s):
4 August 2020


File number(s):
CA 34/19


Jurisdiction:
CIVIL


Place of delivery:
Court of Appeal of Samoa, Mulinuu


Judge(s):
The Honourable Justice Blanchard
The Honourable Justice Harrison
The Honourable Justice Nelson


On appeal from:
Supreme Court of Samoa, Mulinuu


Order:
The appeal is allowed in part. The findings in paragraph [35] of the judgment insofar as they refer to paragraph [32] (iv) and (v) and in the final two bullet points in paragraph [55] are set aside. However, the remaining findings in paragraphs [35] and [55] are upheld.

The proceeding is remitted to the Supreme Court to enter judgment on liability for Reverend Oeti and Ms. Patrick in terms of this judgment and to fix damages and costs.

In view of the fact that the appeal is unsuccessful in relation to the most serious finding the Samoa Observer is ordered to pay Reverend Oeti and Ms. Patrick jointly costs on the appeal of $5000 plus usual disbursements.


Representation:
T. Lamb for the Appellant
M. Lui for Respondents


Catchwords:
Defamation claim – stigmata – Samoa Observer – newspaper publication – social media – online blog – defamatory statements – ordinary meanings – innuendo meanings – popular innuendo – legal innuendo – fair comment.


Words and phrases:
Allegation that letter to editor published defamatory – matter of public interest.


Legislation cited:
Constitution of the Independent State of Samoa, Articls 13(1)(a); 13(2);
Defamation Act 1993, s. 10.


Cases cited:
Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 (CA);
Craig v Slater [2020] NZCA 305;
Fleming; The Law of Torts, Third Edition;
Hulton v Jones [1909] UKLawRpAC 57; [1910] AC 20 (HL);
Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109 (PC);
Joseph v Spiller [2010] UKSC 53, [2011] 1 AC 852;
Lewis v Daily Telegraph Ltd [1964] AC 234 (HL);
Mitchell v Sprott [2001] NZCA 343, [2002] 1 NZLR 766;
Oeti v Samoa Observer [2019] WSSC 77;
Parmiter v Coupland [1840] EngR 168; (1840) 151 ER 340;
Ponifasio v Apia Broadcasting [2011] WSSC 136;
Salmon v McKinnon [2007] NZCA 516;
Sim v Stretch [ 1936] 2 All ER 1237;
TseWai Chun Paul v Albert Cheng [2001] EMLR 777;
Yousoupoff v Metro-Goldwyn-Meyer [1034] 50 TLR 581.


Summary of decision:

CA 34/19


IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU


BETWEEN:


SAMOA OBSERVER COMPANY (APIA) LIMITED


Appellant


AND:


OPAPO SOANAI OETI


First Respondent


AND:


TOAIPUAPUAGA PATRICK


Second Respondent


Court: The Honourable Justice Blanchard
The Honourable Justice Harrison
The Honourable Justice Nelson


Counsel: T. Lamb for the Appellant

M. Lui for Respondents


Hearing: 4 August 2020


Judgment: 4 September 2020


JUDGMENT OF THE COURT

Introduction

  1. The Reverend Opapo Oeti was a religious minister in the Congregational Christian Church of Samoa (CCCS or the Church) or Ekalesia Faapotopotoga Kerisiano i Samoa (EFKS).[1] Toaipuapuaga Patrick is his daughter who claimed publicly that she had experienced stigmata on Good Friday 2016. This phenomenon is said to be the appearance of bodily wounds and pain in locations corresponding to the crucifixion wounds of Jesus Christ, particularly those on the hands, wrists and feet. Ms. Patrick’s claim was apparently the source of much public debate in Samoa.
  2. On 29 March 2017 the Samoa Observer newspaper published a letter from a reader about Ms. Patrick’s claim of stigmata. Both she and her father alleged that the letter was defamatory of them and filed proceedings against the newspaper in the Supreme Court. The publisher denied liability and, following a trial in the Supreme Court, Tuatagaloa J[2] found that some of the statements published in the letter were untrue and defamatory and dismissed the newspaper’s affirmative defence of fair comment. The Judge did not enter judgment and adjourned the issues of damages and costs for later determination.
  3. The Samoa Observer’s publisher now appeals against the liability finding.

Publication

  1. The full text of the offending letter published by the Samoa Observer is:
  2. This text was similar in most respects to an article published three days earlier, on 26 March 2016, by an online blogger known as OLP under the heading “The Antichrist in Samoa”. He published a second online article in similar vein the next day headed, “Stigmata and incest with the father.” The blogs alleged that Reverend Oeti was in incestuous relationships with Ms. Patrick and another daughter as follows:
  3. The blogs were freely available to the public online. By 27 March 2017 the first blog had attracted 148 comments. The Reverend Oeti and Ms. Patrick allege that many people had read the blogs by the time the Samoa Observer published the impugned letter on 29 March.

Competing Cases

  1. Reverend Oeti and Ms. Patrick claim that the passages from the letter highlighted in the text above are defamatory in their ordinary meaning as meaning that:
  2. Alternatively, Reverend Oeti and Ms. Patrick claim that when read together with OLP’s publications the highlighted passages conveyed these innuendos which were understood to be defamatory:
  3. The Samoa Observer’s defences were that (a) the words were not defamatory of Reverend Oeti and Ms. Patrick either in their plain and ordinary meaning or by innuendo and were incapable of bearing the meanings alleged; and (b) the words were published in good faith and without malice and were fair comment on a matter of public interest.
  4. As noted, Tuatagaloa J found that the published words were defamatory, both in their ordinary and innuendo meanings, and that the defence of fair comment was not available. On appeal the newspaper challenges all findings. We shall address the appeal in the same sequence as the Judge determined the issues.

Defamatory Statements

(1) Natural and Ordinary Meaning

(a) Legal Principles

  1. We have distilled this summary of the relevant legal principles which
    Tuatagaloa J adopted in deciding the threshold issue of whether the words complained of were defamatory in their natural and ordinary meaning:
(d) In this respect, the actual intention of the publisher is irrelevant; the only question is what did the words mean, not what they were intended to mean. As a result, witnesses cannot be called to give evidence of their understanding of the words.[7]
  1. These legal principles, as stated by the Judge,[8] are not the subject of challenge on appeal nor is there any dispute that the Samoa Observer published the offending letter; that it was about Reverend Oeti and Ms. Patrick; and that the subject of stigmata was a matter of public interest.
  2. The Judge was satisfied that three of the passages[9] were defamatory in their natural and ordinary meaning. In her words:
  3. The Judge was not satisfied that the other two passages were defamatory. She found that the words did not suggest Reverend Oeti and his daughter were parties to an elaborate plan to mislead the Church or were pursuing a vendetta against the Church.[10] There is no cross appeal against those findings.
  4. Mr. Lamb advanced a number of challenges to Tuatagaloa J’s threshold finding that the publication was defamatory of either or both of Reverend Oeti and Ms. Patrick. We note that his submissions frequently combined or interchanged challenges to each of the Judge’s principal findings that the words were defamatory either in their ordinary or innuendo meanings with challenges to her rejection of the fair comment defence. We prefer to approach the appeal by considering the claims and affirmative defence in isolation from each other.

(b) Stigmata

  1. Mr. Lamb made a general introductory submission designed to raise questions about the reliability of the Judge’s approach to the inquiry. He submitted that Tuatagaloa J erred in finding that Ms. Patrick had experienced stigmata;[11]and that the Judge’s willingness to accept such a controversial claim without a proper factual foundation coloured her approach from the outset and exposed the flaws in her reasoning.
  2. We disagree. As Ms. Lui points out, the Judge was simply reciting Ms. Patrick’s assertion of experiencing stigmata as part of the introductory narrative to the judgment; and was not purporting to make a firm finding to this effect. Whether or not Ms. Patrick had experienced this phenomenon was irrelevant to the issue of whether the publication defamed her. The issue is whether the Judge erred in her findings that the article defamed Reverend Oeti and Ms. Patrick in three material respects. We shall address the first finding discretely and the second and third together.

(c) Paternity

  1. Mr. Lamb submitted that Tuatagaloa J erred in her primary finding that the letter’s reference to DNA testing called into question the paternity of Ms. Patrick’s children and thus defamed her. He submitted that the real meaning of the words, set against the background of Ms. Patrick’s claim to have experienced stigmata on Good Friday in 2016 and a publicized visit to the Vatican in Rome, was that the author was calling for DNA testing to disprove or pre-empt any possible suggestion of an immaculate conception or miraculous birth. The purpose of a DNA test would establish that the father was human, not divine. He adopted the newspaper’s submission in the Supreme Court that Reverend Oeti had on 23 March 2017, just before his daughter’s return from Rome, stated publicly that Ms. Patrick’s recently born second daughter, Agnes, was healthy and had lived as a gift from Jesus Christ.
  2. While we acknowledge that the Judge did not give any reasons for her primary finding, we cannot accept Mr. Lamb’s construction of the offending words when read in context within the confines of the letter and viewed against the background of well-known facts which might form part of the reader’s general knowledge. Ms. Patrick’s claim to have experienced stigmata in 2016 was well publicized. Mr. Lamb did not refer us to any evidence within or related to the letter that she claimed either or both of her children were immaculately conceived. Ms. Patrick’s unchallenged evidence was that her first child was born well before her claim to have experienced stigmata in 2016. She was aged six when proceedings were commenced in 2019. As Ms. Lui emphasizes, if the newspaper’s assertion was correct that the DNA testing was necessary to exclude the possibility of immaculate conception, there could be no purpose in obtaining a test on the first child born some years before the claim of stigmata. Agnes was born during Ms. Patrick’s trip to Italy in February 2017. Moreover, Ms. Patrick was not challenged at trial on her declaration in the birth certificate that her husband, Patrick Ah Chong, was the father.
  3. We are satisfied that in their natural and ordinary meaning the words calling for DNA tests to be administered, when construed objectively and in context, called into question the paternity of Ms. Patrick’s children, and implied that someone other than their putative father was their biological father. The passage was defamatory in its suggestion that Ms. Patrick had had an adulterous relationship during her marriage and had been unfaithful to her husband. This damaging sense was compounded by the imputation of possible criminality in the conception process which was conveyed by the call for the Police to become involved in the process and interview Ms. Patrick’s brother and sister. The letter did not restrict the author’s assertion of a need for DNA testing to the matter of immaculate conception.
  4. The Samoa Observer made no attempt to justify the truth of the words used. In our judgment they were false and were designed to discredit Ms. Patrick and lower her reputation in the eyes of right - thinking members of Samoan society. The statement in its ordinary meaning defamed Ms. Patrick but not her father.

(d) Mental Impairment and Brainwashing

  1. We can conveniently deal together with Mr. Lamb’s challenges to Tuatagaloa J’s second two findings. She held that the statements that both Reverend Oeti and Ms. Patrick were “...sick in the head..” implied they were mentally impaired; and that Ms. Patrick was “... a victim of being brainwashed from a young age...” implied a dysfunctional relationship between a controlling father and a vulnerable daughter. Mr. Lamb said that the first statement did not purport to make a clinical judgment about their states of mental health. Instead, he says, when read in context the statement was designed to call into question the judgment of those who believed in stigmata. He submitted that the second statement attracts the defence of fair comment.
  2. We agree with the Judge that if these two statements were actually statements of fact they would bear the defamatory meanings she attributed to them. But as, in our view, they are plainly only comments by the writer of the letter we will defer discussion of them until we consider the defence of fair comment.

(2) Innuendo

(a) Trial Findings

  1. Tuatagaloa J approached the alternative allegation that the words were defamatory of both Reverend Oeti and Ms. Patrick by innuendo against the admitted background that at the date of publication the stigmata issue had been covered extensively in articles published in the newspaper and in OLP’s two blogs.[12] She was satisfied that five of the innuendo meanings were proved,[13]principally that (a) Ms. Patrick’s two children were fathered by somebody other than their putative father;[14](b) at least two of Ms. Patrick’s siblings were aware of her illicit relationship relating to the paternity of her children; (c) Reverend Oeti and his daughter were in an incestuous relationship; (d) both the minister and his daughter were mentally impaired; and (e) the minister had been controlling and brainwashing his daughter from an early age. The Judge stopped short of drawing the innuendo that Reverend Oeti was in fact the father of his daughter’s children but was in no doubt that these five innuendo meanings were defamatory.[15] However, she dismissed the innuendo allegations about an elaborate plan to mislead the Church.[16]
(b) Legal Principles
  1. It is necessary for us to identify the principles relating to a pleading of innuendo because it appears that the parties may have approached the issue at trial on an incorrect legal premise, reflected in the Judge’s statement that innuendo arises where words bear a further meaning beyond their ordinary meaning because of the existence of extrinsic facts “...known to a limited group of people...”[17]
  2. The concept of an innuendo in the law of defamation has been the subject of much judicial consideration.[18] Broadly speaking, two types of innuendo have evolved. The first, known as a popular innuendo, has gained currency where an innuendo is pleaded without resorting to material which is extrinsic to the offending statement and as an alternative to the primary claim of a defamatory meaning conveyed by the words where used in their natural and ordinary sense. The same statement is said to impute or imply a defamatory meaning different from the meaning to be drawn from a literal reading of the words themselves on the premise that the reasonable person would read an adverse meaning into them without having to go outside the confines of the statement itself. The pleading is adopted as a safety or precautionary measure where the defamation is not absolutely explicit in the sense of being necessarily inherent in words used.[19]
  3. The second type of innuendo is what is known as the legal innuendo. One category is where the words used are innocent in their natural and ordinary meaning but are capable of being understood in a defamatory sense by persons to whom special facts are known. It is simply necessary for a plaintiff to lead evidence from a person or persons who knew those special facts and so might have understood the words in that particular sense. The cases of this type of innuendo are relatively rare, and notorious for that reason.[20]Another category of legal innuendo is where the defamatory meaning alleged is not the ordinary meaning conveyed by the words themselves but by virtue of special facts or matters available from extrinsic material known to the recipients of the publication the words carry a distinct defamatory meaning with a more serious imputation.[21] It is this conjunction of the words used with the known additional material which creates the defamation.
  4. There is no conceptual difference between these two categories of legal innuendo. The distinction is simply that in the former category the readers are likely to be members of a limited class with special knowledge derived from familiarity with the parties’ circumstances, whereas in the latter the members of the class are the general public whose special knowledge is derived from viewing other publications.
  5. The case pleaded by Reverend Oeti and Ms. Patrick fell unequivocally into the latter category of legal innuendo. Their statement of claim properly particularized the extrinsic facts and matters on which they relied to support their innuendo based upon the widespread currency of OLP’s two online blogs posted just prior to publication of the impugned letter. The pleading properly introduced the additional dimension of the conjunction of the words used in the letter which questioned the paternity of Ms Patrick’s two children with the assertions in the two blogs of Reverend Oeti’s incestuous relationships with Ms Patrick and another daughter However, at trial the focus apparently shifted to evidence from another Church minister, Reverend Misiparatiso, which was designed to establish that special facts were known to a small group of people and caused Reverend Oeti’s dismissal from his position in the CCCS. This unfortunate diversion into the type of inquiry characteristic of an innocent innuendo claim has introduced a degree of confusion in determination of the claim.
  6. In Mr. Lamb’s submission, Tuatagaloa J was correct to accept that proof of the innuendo allegation required evidence from a “limited group of people” of extrinsic facts. But he said that she erred by explicitly applying the objective yardstick of the hypothetical ordinary person when determining this allegation. In his submission Reverend Oeti and Ms. Patrick failed to discharge their evidential onus because the only witness called from the limited group with special knowledge of the extrinsic facts was Reverend Misiparatiso and he admitted that he had not read either of the OLP blogs. His knowledge of them was of a hearsay nature, gleaned from others.
  7. This submission confirms the confusion about the legal principles to which we have referred. Tuatagaloa J was correct to adopt the objective test in determining the true innuendo allegation. This was not an innocent innuendo case. The lines between the two concepts became blurred, however, by the Judge’s references to the subjective touchstone of the “...limited group of people...” and Mr. Lamb’s reliance on it as a principal ground of appeal.
  8. Mr. Lamb also relied on the absence of evidence of a causal link between OLP’s two blogs and the publication itself. On this basis, he submitted, the Judge was wrong to find the letter read together with OLP’s blogs implied “...some incestuous relationship or something sinister...”[22] between father and daughter. He emphasized that the letter published in the Samoa Observer made no headline reference to the allegation of an incestuous relationship made in the OLP blogs; that the evidence was uncontested from the newspaper’s editor, Mata’afa Keni Lesa, that the DNA reference was, as we have noted, really a call to disprove the claim by Ms. Patrick of an immaculate conception or miraculous birth as asserted publicly on various occasions; and that OLP’s blogs were not as well known or popular as they appeared.
  9. We disagree. Tuatagaloa J was entitled to take account of all the relevant background material which was in the public domain when undertaking her innuendo assessment. That was the essence of a true innuendo inquiry. The absence, for example, of the same headline to one of the blogs from the heading to the letter was not decisive. The Judge’s function was to evaluate the cumulative effect of similarly but not identically themed publications appearing within three days. There was no evidential requirement to establish a causal link between the OLP blogs and the letter. Mr. Lamb is attempting to elevate what was Mr. Lesa’s own subjective interpretation of the facts to the category of reliable evidence which was in any event, irrelevant to the Judge’s objective assessment, and she was right to ignore them.

(c) Incest and Illicit Relationship

  1. While the Judge did not record her evaluation of it, there was ample evidence to support her three primary findings about the relationship between Reverend Oeti and his daughter. OLP’s blogs enjoyed a significant following. The letter was published within three days of the first blog. It repeated the key themes of the blogs except for identifying Reverend Oeti as an incestuous father of the children of two of his daughters. However, the other references to the call for police involvement in requiring DNA testing of the children and its associated implication of criminality, and to the knowledge of two of Ms. Patrick’s siblings of what was said to be the truth, would leave right-thinking members of Samoan society who were familiar with the blogs in no doubt that the letter writer was implying that Reverend Oeti and his daughter were in an incestuous relationship.
  2. The only plausible reason for involving the Police would be to investigate criminal activity relating to the birth of both Ms. Patrick’s children. The only purpose of requiring DNA tests would be to provide evidence that Reverend Oeti was the childrens’ biological father. The crime of incest would be proved as a result. And the blogger OLP had explicitly identified Reverend Oeti as the father of Ms. Patrick’s first child, explaining the later call in the letter for DNA tests on both girls.
  3. The imputation of an unhealthily close and intimate association between father and daughter was compounded in the immediately following references in the letter to it operating to the exclusion of other immediate family members, and Ms. Patrick being brainwashed from a young age. The only available inference was that the other two siblings knew a family secret, what the blogger referred to as “...the Truth, involving their father and sister relating to the births of the two girls...” Contrary to Mr. Lamb’s submission, the absence from the letter of an identical heading to the second blog, or an express reference to an adulterous relationship between Reverend Oeti and his daughter, does not save it from the unavoidable inference that the author was implying the commission of incest. The conjunction of the publications, both in their timing and coincidence of their themes, provided a sound evidential foundation for the Judge’s conclusion.
  4. There is no cross appeal against the Judge’s limitation of the incest finding to the relationship itself, instead of upholding the claim by Reverend Oeti and Ms. Patrick that the necessary innuendo was that he was the father of her children. However, in our view that further finding was inevitable and the Judge did not give reasons for not making it. The suggestion of criminality was common to both the blogs and the letter, and incest was the only possible crime which could have been committed in relation to the childrens’ conception.
  5. Mr. Lamb submitted that the Judge found that Reverend Oeti and Ms. Patrick were required to establish that their reputations had been lowered in the eyes of a respectable group such as the CCCS Elders Committee but that[23]there was no evidence that their reputations had been so lowered. However, his submission misconstrues Tuatagaloa J’s finding. She simply gave the Elders Committee as an example of a group in whose eyes the reputations of Reverend Oeti and Ms. Patrick may have been lowered. That fact, even if it had been established by the evidence, would not have been relevant to the appropriate objective touchstone to be applied by the Judge. In determining liability, as opposed to assessment of damages if liability is found, the question is what is the meaning which the words convey to the trial tribunal, whether Judge alone or jury, not what they subjectively convey to a particular group.
  6. In similar vein Mr. Lamb deployed Reverend Misiparatiso’s evidence that he did not believe the truth of the published allegation about Reverend Oeti as the foundation for a submission that the minister and his daughter had not been defamed. That was because their reputations had not been lowered in the eyes of the only witness called in support of their case. However, we agree with Ms. Lui that for the reasons just given a witness’s reaction is irrelevant to the application of the objective test when determining liability (as opposed to an assessment of damages if liability is found).[24]
  7. So we agree with Tuatagaloa J that the innuendo meaning of the words used in the letter about the relationship between Reverend Oeti and Ms. Patrick and the paternity of Ms. Patrick’s children was defamatory of both. The remaining issue is whether the Judge was correct to dismiss the publisher’s defence of fair comment relating to all her findings.

Fair Comment

(a) Legal Principles

  1. In dismissing the fair comment defence the Judge held that, while it was common ground that stigmata was a matter of public interest, the words used were not the honestly held views of the publisher on a substratum of true facts.
  2. Mr. Lamb does not challenge the Judge’s summary of the relevant legal principles applying to this defence. She held that in order to succeed the publisher must establish that (a) the statement was a comment or opinion and not an imputation of fact; (b) the comment or opinion or its mixture must be based on a substratum of true facts; (c) the comment must be made on a matter of public interest; and (d) the comment must be fair, that is, the honestly held opinion of the publisher.[25]
  3. Mr. Lamb focused on what he says are errors by Tuatagaloa J in her separate evaluation of these four elements. We appreciate that the judgment reflects a degree of intermingling between them. However, that is not decisive to the result of the appeal.

(b) Incest and Illicit Relationships

  1. The threshold question on the primary allegation about paternity and incest is whether the offending statements are of comment or opinion on the one hand or fact on the other. The Judge acknowledged the difficulty in isolating these two concepts on the facts of this case.[26] While we accept her view, we do not share that difficulty. In our view the essence of the call for the Police to intervene and direct DNA tests was a statement of opinion, not an imputation of fact, or a mixture of fact and opinion if account is taken of the assertion that the other two siblings knew the truth about the relationship between their father and sister.
  2. However, the newspaper’s defence must fail at each of the next three hurdles. First, the comment must indicate in general terms the facts on which it is based. It must state explicitly or implicitly what it was which led the author to make that comment.[27] The publisher is able to rely on other facts generally known at the time of publication[28] but they must be identifiable from and referable to the comment and cannot be founded on the opinion of another person.[29] As Ms. Lui submitted, the defence will never avail a person who suggests or invents facts and then comments upon them; he or she must get the basic facts right.[30]
  3. In this case there was no factual substratum to the impugned passage at all. The statement was simply an assertion that the Police should become involved in DNA testing of Ms. Patrick’s children and that two of her siblings knew the truth, by implication about the paternity of her children. Mr. Lamb submitted that the relevant facts on which the comment was based could be gathered from other publications. But he failed to identify what those publications were and the unproven opinions of OLP could never suffice as a factual substratum.
  4. Mr. Lamb sought support for his argument from the evidence of Mr. Lesa, the newspaper’s editor, but as we have said his understanding that the DNA testing was called for to disprove the immaculate conception of Ms. Patrick’s second child was irrelevant and in any event did not excuse the reference to testing both girls. Mr. Lamb also relied on s.10 of the Defamation Act 1993. That provision does not avail the newspaper here. Its defensive application is limited to claims of defamation where the words consist partly of allegations of fact and partly of expressions of opinion, which is not this case. In that situation s.10 rotects the publisher if an allegation of fact is not proved providing the expression of opinion is fair comment having regard to such of the facts alleged or referred to as are proved.
  5. Second, the comment was not made on a matter of public interest. We agree with Tuatagaloa J[31] that the claim of stigmata was a matter of public interest. However, in the context of a fair comment defence, the impugned comment must be germane to the subject matter upon which the relevant comment is made.[32] The wider scope of the publication is irrelevant. In this case the challenge to the lawful paternity of Ms. Patrick’s children was unrelated to her claim to have experienced stigmata. It was a gratuitous criticism of her character and alleged sexual misconduct, compounded by an imputation of criminality committed with her father. Her personal life was not a matter of public interest. In this respect we endorse Tuatagaloa J’s observation, made in a slightly different context, that in democratic societies freedom of speech and expression will prevail over the individual right to protection of his or her reputation where publication of defamatory material serves a public interest: but where no public interest is served by the publication, protection of reputation prevails.[33]
  6. Third, we endorse the Judge’s application of the objective test to the issue of whether the comment was fair.[34] She correctly asked herself whether the comment was one which an honest person could make on the proven facts, however prejudiced, obstinate, or exaggerated his or her own views might be. Again Mr. Lamb relied on Mr. Lesa’s subjective opinion which is not the legally correct touchstone. There was only one available answer to this question once it is found that there was no factual substratum for the comment and the publisher, which carried the evidential onus, did not attempt to establish the truth of what was published.
  7. The Samoa Observer fell well short of discharging the burden of establishing all four elements of the defence of fair comment. Its appeal on this ground must fail also. Mr. Lamb raised a failure by Reverend Oeti and Ms. Patrick to prove malice. However, Tuatagaloa J was right to observe that a failure to plead malice is a non-issue if the publisher fails to make out its fair comment defence.[35]

(c) Mental Impairment and Brainwashing

  1. The Judge’s remaining two findings about mental impairment and brainwashing can be addressed together within the fair comment defence. Unlike the paternity and incest allegations, the subject of stigmata was directly germane to each statement and in this context we repeat our agreement with Tuatagaloa J that a claim of stigmata was truly a matter of public interest. The Judge had earlier referred to the reality that this subject, which is mainly associated with the Catholic faith, would draw polarized opinions within a predominantly Christian nation like Samoa which would normally find expression on social media and through publication in the Samoa Observer.[36]
  2. In these circumstances it is to be expected that any public debate about stigmata would be of a robust nature. Tuatagaloa J acknowledged that Article 13(1)(a) of the Constitution protects the right of every Samoan citizen to freedom of speech and expression[37] subject only to reasonable restrictions, as recognized by s.13(2). A society which values these freedoms must tolerate a degree of hyperbole and intemperance in the expression of conflicting opinions on any emotionally charged issue. We appreciate that what is a reasonable restriction requires a fact specific inquiry of the type with which a Court is equipped to undertake. Nevertheless, the line of reasonableness should not be drawn too finely against free speech. A Court must ask itself whether in the context of public debate about a subject of intense interest to a significant sector of Samoan society a statement is of a truly defamatory nature before requiring a publisher to jump through the hoops of proving all the elements of a fair comment defence.
  3. We agree with Mr. Lamb. In our judgment the “sick in the head” and “brainwashed” fall into a different category from the paternity allegation. The first statement was plainly an exaggeration, an intemperately expressed criticism of those who believed in stigmata, but we are satisfied that it was objectively honest. It was synonymous with an allegation of wrong headedness. It clearly suggested that all who believed in that phenomenon, not just Reverend Oeti and Ms. Patrick, must be mentally unwell. The opinion was based solely on the fact of that belief. The comment did not purport to pass a clinical judgment on the states of mind of either Reverend Oeti or Ms. Patrick or suggest that they were mentally disordered for any organic reason or for any reason unrelated to their belief in stigmata.
  4. Similarly we agree with Mr. Lamb about the brainwashing statement. The term is used to criticize the process of exerting improper psychological control to persuade somebody to accept a belief system. It is frequently associated with a power imbalance and vulnerability. It is a colourful epithet which is now freely used to decry those who influence others to adopt a particular way of thinking. Its currency is such that, depending on context, it now means little. While a term of disparagement, it hardly justifies the law extending protection to those against whom it is deployed in a letter that was so patently unbalanced and exaggerated in its expressions of opinions, as opposed to its assertions of fact, that it would be unlikely to be treated seriously by right-minded readers. The comment had no stand-alone potency sufficient to warrant a finding of defamation. Its true relevance lies not in its isolated use but in its conjunction with the preceding statement about the paternity of Ms. Patrick’s children.
  5. The defamatory sting in the letter was in its call for police intervention to enforce scientific testing for the purpose of establishing the true paternity of Ms. Patrick’s children and its imputation of criminality in their conception. In the absence of this allegation the other allegations about the father and daughter being sick in the head or the father brainwashing his daughter would not have supported defamatory findings. The first statement would have been construed as an intemperate and indiscriminate attack directed at anybody who believed in stigmata, and the second as an assertion about an undesirable but not uncommon aspect of the family relationship. In summary, both statements satisfy the four elements of the fair comment defence; they were statements of opinion based on a factual substratum, on a subject of public interest and were “fair”. There was no finding of malice.

Result

  1. The appeal is allowed in part. The findings in paragraph [35] of the judgment insofar as they refer to paragraph [32] (iv) and (v) and in the final two bullet points in paragraph [55] are set aside. However, the remaining findings in paragraphs [35] and [55] are upheld.
  2. The proceeding is remitted to the Supreme Court to enter judgment on liability for Reverend Oeti and Ms. Patrick in terms of this judgment and to fix damages and costs.
  3. In view of the fact that the appeal is unsuccessful in relation to the most serious finding the Samoa Observer is ordered to pay Reverend Oeti and Ms. Patrick jointly costs on the appeal of $5000 plus usual disbursements.

HONOURABLE JUSTICE BLANCHARD
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE NELSON

[1]For the sake of consistency we will use the acronym CCCS or the Church in this judgment.
[2]Oeti v Samoa Observer [2019] WSSC 77.
[3]At [16] of the Judgment.
[4]At [29].
[5]At [17].
[6]At [27] and [29].
[7]At [28].
[8] At [15]–[ 27] , see Ponifasio v Apia Broadcasting [2011] WSSC 136 at [26] – [28], Sim v Stretch [ 1936] 2 All ER 1237, Yousoupoff v Metro- Goldwyn- Meyer [1034] 50 TLR 581, Parmiter v Coupland ( 1840) 151 ER 340.
[9]See para [7] (a), (d) and (e) above.
[10]At [36], see para [7] (b) and (c) above.
[11]At [2].
[12]At [37] and [38].
[13]At [46], and at para [8] (a), (b), (c), (d) and (f) above.
[14]The Judge’s reference at [46] (ii) to their “biological” rather than their putative father is simply a slip.
[15]At [55].
[16]At [47].
[17]At [39].
[18] See Lewis v Daily Telegraph Ltd [1964] AC 234 (HL) per Lord Devlin at 274.
[19] Fleming; The Law of Torts, Third Edition at p511.
[20]See Hulton v Jones [1909] UKLawRpAC 57; [1910] AC 20 (HL), Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 (CA).
[21] See Lewis at n 18 above.
[22]At [45].
[23]At [53].
[24]Salmon v McKinnon [2007] NZCA 516 at [41] – [43].
[25] At [58] – [60], see also Joseph v Spiller [2010] UKSC 53, [2011] 1 AC 852. at [3] – [7] per Lord Phillips.
[26]At [78], see Mitchell v Sprott [2001] NZCA 343, [2002] 1 NZLR 766 at [17].
[27] Joseph v Spiller, at n 25 above, at [102] onwards.
[28] Mitchell v Sprott, at n26 above, at [22].
[29] Craig v Slater [2020] NZCA 305 at [96].
[30]Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109 (PC) at p1113, per Lord Ackner.
[31]At [69].
[32]TseWai Chun Paul v Albert Cheng [2001] EMLR 777 at [20] per Lord Nicholls.
[33]At [80].
[34]At [79], see also Joseph v Spiller at n 25 above, at [108].
[35]At [52].
[36]At [48].
[37]At [63].

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