IN THE SUPREME COURT OF SAMOA
Oeti & Anor v Samoa Observer [2019] WSSC 77

Case name: 	Oeti & Anor v Samoa Observer	
		
Citation: 	[2019] WSSC 77	
		
Decision date: 	30 August 2019	
		
Parties: 	OPAPO SOANAI OETI, of Vaitele, Apia (First Plaintiff) & TOAIPUAPUAGA PATRICK, of Vaitele (Second Plaintiff) AND SAMOA OBSERVER COMPANY (APIA) LIMITED a duly incorporated company having its place of business at Apia (Defendant)	
		
Hearing date(s): 	01 March 2019	
		
File number(s): 	C49/17	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Mata Keli Tuatagaloa	
		
On appeal from:		
		
Order:	In summary, I find as follows:
(i) That certain statements or words (paragraph 35) in their ordinary and natural meanings were understood to be defamatory; 
(ii) That certain statements or words (paragraph 55) in their natural and ordinary meanings were understood to convey meanings (innuendos) that are defamatory; and
(iii) The defence of fair comment has not been made out.
There now remains the issue of damages and costs.	
		
Representation: 	M. Lui for Plaintiffs
H. Wallwork for Defendant	
		
Catchwords: 	newspaper publication – letter to the Editor – defamation claim – O le Palemia blog – defamatory statements – statements ordinary meaning – statements innuendo meaning – fair comment.	
		
Words and phrases:		
		
Legislation cited:	Constitution of the Independent State of Samoa, Article 19(1)(a);
Defamation Act 1993, s. 10;
Defamation Act 1992 (NZ), s. 10(2).	
		
Cases cited:	A v Ipec Australia Ltd & Crew [1973] VR 39; see also Christchurch Press Co. Ltd v McGaveston [1986] 1 NZLR 610 (CA);
Chernesky v Armadale Publishers Ltd [1979] 1 SCR 1067, 1978 CanLII 20 (SCC);
Hulton & Co Ltd v Jones [1910] AC 20; 
Kemsley v Foot [1952] AC 345
Lewis v Daily Telegraph Ltd [1964] AC 234, 259 per Lord Reid (HL);
Lyon v The Daily Telegraph Ltd [1943] K.B. 746, at p.752;
Malifa v Sapolu [1999] WSSC 47 (30 March 1999);
Mauli v University of the South Pacific [2007] WSSC 23 (5 April 2007);
Merrivale v Carson (1887) 20 Q.B.D. 275 (CA)  per lord Esher at p.281;
Mirror Newspaper Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510;
Parmiter v Coupland (1840) 151 ER 340;
Plymouth Mutual Co-operative and Industrial Society Ltd v Traders’Publishing Association Ltd [1906] 1 K.B. 403; 
Ponifasio v Apia Broadcasting [2011] WSSC 136, paras [26 – 28];
Silking v Beaverbrook Newspapers Ltd (1958) 2 All ER 516; Silking v Beaverbrook Newspapers Ltd [1958] 1 WLR 743, 748 – 749 per Diplock J
Sim v Stretch [1936] 2 All ER 1237;
Slim v Daily Telegraph Ltd [1968] 2 QB 157, 172 (CA);
Telnikoff v Matusevitch [1992] 2 AC 343 (HL);
The Law of Torts in New Zealand 4th edition by Stephen Todd, Hughes Burrows, Smillie Hawes Beck, Brookers Ltd, 2005, paragraph [17.2] at p.652;
White & Co v Credit Reform Association and Credit Index Ltd [1905] 1 K.B. 653;
WIC Radio Ltd v Simpson [2008] S.C.J No.41; WIC Radio Ltd v Simpson [2008] 2 SCR 420, 2008 SCC 40
Youssoupoff v Metro-Goldwyn-Meyer (1934) 50 TLR 581.	
		
Summary of decision:		

CP 49/17

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

OPAPO SOANAI OETI, of Vaitele, Apia

First Plaintiff

AND:

TOAIPUAPUAGA PATRICK, of Vaitele

Second Plaintiff

AND:

SAMOA OBSERVER COMPANY (APIA) LIMITED a duly incorporated company having its place of business at Apia

Defendant

Counsels:		M. Lui for Plaintiffs
			H. Wallwork for Defendant
Hearing:		01 March 2019
Submissions:		20 March 2019
Judgment:		30 August 2019

JUDGMENT OF TUATAGALOA J
I must say that I find this area of the law of torts not easy and very technical to deal with and especially so when one is not conversant with this area of the law. 
The parties
1. 	The first plaintiff was a religious minister for the Congregational Christian Church of Samoa (“CCCS”) or Ekalesia Faapotopotoga Kerisiano Samoa (“EFKS”). 
2. 	The second plaintiff is his daughter who in 2017 experienced stigmata.
3. 	The defendant is the company who owns the Samoa Observer Newspaper that published a letter on 29 March 2017 titled, “Stop this Madness: Church Stigmata row deepens,” penned by a person under the initials ‘M.R.’ 
The claim
4. 	The plaintiffs’ claim relates to an article published by an anonymous blogger on the “O le Palemia” blog (widely known as ‘OLP’). The plaintiffs’ say that the exact same article was published by the defendant on 29 March 2017.
The letter 
5. 	The words complained of are contained in the letter published in full by the Samoa Observer as follows: 
	It appears to me that this man Oeti has a personal problem with the Elders of the church and he’s using his daughter’s stigmata to get his point across – he has a personal vendetta against them. 
	He’s just as sick in the head as his daughter and those who put their faith, trust and belief in this stigmata fiasco.
	In his whole interview, he did not say anything about any message that was sent by God. The Chairman of the Church did not say anything about God knocking on his door.
	It also appears to me that Oeti wants the Elders of the Church to worship his daughter and just like how he got the PM and other leaders to kiss his daughter’s foot. 
	It was exactly what he wanted. If you watch Toa’s video taken in Rome, where she’s crying on the bed, it appears to be the cry of one who has a guilty conscience because of what she had done and of the sins she committed. 
	To all those who sent hate letters to me because of my views on the stigmata- if you want to go kiss Toa’s foot and ask her for her blessing, then go right ahead.
	You dumb fools are living in poverty – you are poor in the Spirit and that includes PM Tuilaepa and all the leaders that believe in this rubbish.
	Jesus already taught us how to spot the difference between the true prophet and a false prophet. All the social problems and the sins the people are committing today e.g. A father murders his own son; a son murders his own father; a father rapes his own daughter; a mother commits incest with her own son; mother’s murdering their own babies; leaders and politicians steal from and raping the people etc. etc. etc. are the reflection of your worshipping the devil. The list of the sins that the people never committed before in this country can go on and on.
	You are all a bunch of hypocrites. You carry on like you’re worshipping the god of evil. You don’t like what I wrote because the Truth hits the core of your soul.
	There is only one Jesus – there’s no other Jesus.
	The police should move in and ask for D.N.A. tests to be carried out on both Toa’s children and interview both Toa’s sister and brother who know the Truth, in order to put a stop to this madness. 
	Right from the beginning of this stigmata saga, it has always been Toa and her father but the sister, brother and mother are never to be seen. 
	This young woman Toa is a victim of being brainwashed from a young age.
	As for the Elders of the church, I don’t blame them for choosing not to believe in this.
6. 	The underlined words and/or statements the plaintiffs plead are defamatory.
The plaintiffs’ case
7. 	On 26 March 2017 OLP published an article titled, “The Antichrist in Samoa,” immediately followed by another article, “Stigmata and incest with the father,” published on 27 March.  The plaintiffs’ claim that the article published by OLP on 26 March 2017 is the exact same article published by the defendant on 29 March 2017. Both letters were penned by a person under the alias “M.R.”  
8. 	The plaintiffs contend that the defendant as publisher, even if not the author of the article or letter, is liable either jointly with the author or independently of the defamatory statements. Furthermore, the defendant did not seek any comment from the plaintiffs prior to publishing the article or letter on 29 March 2017.
9. 	The plaintiffs’ plead that certain statements or words are not only defamatory in their natural and ordinary meaning but also when read together with the articles or blogs on OLP of 26th and 27th March 2017 also conveyed innuendos that are understood to be defamatory.
10. 	The following words in their natural and ordinary meanings say:
•	“The police should move in and ask for DNA tests to be carried out on Toa’s children and interview both Toa’s sister and brother who know the truth, in order to put a stop to this madness” - That the second plaintiff’s children were fathered by someone other than her children’s father. 
•	“It appears to me that this man Oeti has a personal problem with the Elders of the Church and he’s using his daughter’s stigmata to get his point across – he has a personal vendetta against them. It also appears to me that Oeti wants the Elders of the Church to worship his daughter and just like how he got the PM and other leaders to kiss his daughter’s foot. It was exactly what he wanted. If you watch Toa’s video taken in Rome, where she’s crying on the bed, it appears to be the cry of one who has a guilty conscience because of what she had done and of the sins she committed” - That the plaintiffs’ have been embarking on some elaborate plan to mislead the Church leaders, political leaders and the people of Samoa.
•	The first plaintiff has a personal vendetta against the Church Elders is clearly stated. 
•	“He’s (Opapo) just as sick in the head as his daughter and those who put their faith, trust and belief in this stigmata fiasco” - That both plaintiffs’ are mentally impaired. 
•	This young woman Toa is a victim of being brainwashed from a young age - The first plaintiff has been brainwashing, controlling and abusing the second plaintiff. 
11. 	The plaintiffs plead that these words in their natural and ordinary meanings are also understood to convey the following innuendos which are defamatory:
•	That there was an incestuous relationship between the plaintiffs;
•	That the second plaintiff’s children were fathered by the first plaintiff;
•	The first and second plaintiffs’ and at least two of the first plaintiff’s other children were aware of and hiding some illicit relationship relating to the paternity of the second plaintiff’s children;
•	Both plaintiffs are cruel and perverted and are mentally impaired;
•	The first and second plaintiffs’ have been embarking on an elaborate plan to mislead Church leaders, the political leaders and the people of Samoa;
•	The first plaintiff has been abusing, controlling and brainwashing the second plaintiff from a young age.
The defendant’s case
12. 	The defendant pleads that the words complained of were published in good faith, without malice and are not defamatory of the plaintiffs either in their plain and ordinary meaning or by innuendo and are not understood to bear and are not capable of bearing the meanings alleged in paragraphs 6(a) – (i) of the Statement of Claim. 
13. 	The defendant says that the comments must be read in the context of the letter as a whole to get the true meaning or picture of what the author is talking about but not taken or read in isolation as individual sentences.  
14. 	The defendant pleads that:
(i) 	The letter published on 29 March 2017 cannot amount to the innuendos and natural and ordinary meaning (pleaded by the plaintiffs) without the link to the OLP blog.
(ii) 	The subject matter of stigmata is a matter of public interest and it had drawn polarised views from the general public.  
(iii) 	The defendant pleads the defence of fair comment is a matter of public interest whereby the onus is on the defendant to prove the defence on the balance of probabilities. The plaintiff to disprove the defence by proving ‘malice’.
Legal principles relevant to the defamation claim
15. 	Whether the words in the communication are defamatory in their natural and ordinary meaning is a matter of construction to be interpreted objectively under the circumstances and in the context in which the communication is made. The plaintiff in a defamation case must prove the following:
(a) 	A defamatory statement has been made;
(b) 	The statement was about the plaintiff; and
(c) 	The statement was published by the defendant.
16. 	The legal principles relevant to a defamation claim is well settled that a defamation includes: 
(i) 	A statement or any imputation which may tend to lower the plaintiff in the estimation of right-thinking members of society generally;
(ii) 	A false statement about a person to his or her discredit;
(iii) 	A publication without justification which is calculated to injure the reputation of another by exposing him or her to hatred, contempt or ridicule; and
(iv) 	A statement about a person which tends to make others shun and avoid him or her
17. 	The test is, what would the objective ordinary or reasonable person understand the matter complained of to mean? This is an ordinary person, “with ordinary general knowledge, not an unusually suspicious or unusually naive person.....who lives in an ivory tower...” 
Discussion/Analysis
18. 	In Samoa defamation cases are tried by Judge alone unlike in England, Australia and New Zealand where defamation cases are tried before a jury. My task therefore is to decide whether or not the words complained of in their natural and ordinary meanings are defamatory; or if they are reasonably capable of bearing the meaning defamatory of the plaintiffs as alleged. If so, whether they did in fact bear such meaning. 
19. 	Defamation protects every person from harm to their reputation by false and derogatory remarks about their person. It is, essential that the defamatory statement be published to a third person. Publication of the statement is the actionable wrong. 
20. 	Both counsels agree that:
(i) 	The letter was published by Samoa Observer on 29th March 2017;
(ii) 	The letter refers to the First and Second Plaintiffs; and
(iii) 	The letter was in relation to the issue of stigmata, a matter of public interest given the many views and opinions on the news medium and social media. 
21. 	The question of whether a comment is one on a matter of public interest must be clearly distinguished from the question of whether it is defamatory. The statements here may well be defamatory but even if it is defamatory, it is not actionable if the person publishing the statement has a good defence such as fair comment.
22. 	As I understand in the pleadings and submissions of counsel for the Plaintiffs, Counsel contends that the words or statements pleaded in their natural and ordinary meanings are defamatory and/or those words in their natural and ordinary meaning would be understood to convey innuendos that are defamatory.
23. 	There are in fact two kinds of meaning that can be pleaded by a claimant or plaintiff. The first is what is known as the “natural and ordinary” meaning of the words and secondly is innuendo meaning.
24. 	In determining whether a statement is defamatory, the court can look at the statement’s ordinary and innuendo meaning. The ordinary meaning of a statement is how a person with only general knowledge would have understood the statement. The innuendo meaning is how only a person with special knowledge of certain facts or meanings would have understood the statement.
25. 	I will approach the issue of defamation as follows:
(a) 	Whether the words or statements complained of in their natural and ordinary meaning pleaded by the plaintiffs defamatory? Where the words complained of are in their natural and ordinary meaning capable of being held to be defamatory, no innuendo is necessary. If they are not, then I would move on to consider any meaning by way of innuendos as follow;
(b) 	Whether the words or statements complained of in their natural and ordinary meanings carry the innuendos pleaded by the plaintiffs;
(c) 	Whether the innuendos pleaded by the plaintiffs are defamatory; and
(d) 	Whether the defence of fair comment is available to the defendant.
26. 	The test is whether the statements tend to lower the plaintiffs in the eyes of the right thinking members of society.
27. 	Each case depends on its facts and on the impression the article or letter would make on a reasonable reader. The impugned words or publication must be considered as a whole including the circumstances in which the words are used.  
Are the words or statements pleaded by the plaintiffs in their natural and ordinary meaning defamatory?
28. 	The natural and ordinary meaning of the words is the meaning given to it by ordinary readers and listeners. In ascertaining the natural and ordinary meaning of a statement, the actual intention of the publisher is irrelevant; what is relevant is what the publisher’s words conveyed, not what he or she intended to convey. It is what they do convey to a reasonable reader or listener. Thus, witnesses cannot be called to give evidence of their understanding.
29. 	The meaning must be gathered from the words themselves and in the context of the entire passage in which they are set out. The court is not confined to the literal or strict meaning of the words, but takes into account what the ordinary, reasonable person may reasonably infer from the words. 
30. 	Well-known facts given media coverage may well constitute part of the common or general knowledge of ordinary men and women to which the court is required to take into account in deciding what the natural and ordinary meaning of the words are. 
31. 	The test of whether a statement is defamatory in its natural and ordinary meaning is based on the objective reasonable man test (as opposed to innuendo), where the question turns on whether there are any extrinsic facts which are known to the ordinary reader such that he would put a meaning on the words that goes beyond the natural and ordinary meaning of the words; and if so, what such meaning might be and whether the meaning is defamatory.
32. 	The following are implied from the statements or words in their natural and ordinary meanings as pleaded by the plaintiffs:
(i) 	“The police should move in and ask for DNA tests to be carried out on Toa’s children and interview both Toa’s sister and brother who know the truth, in order to put a stop to this madness,” says that the second plaintiff’s children were fathered by someone other than her children’s father. 
(ii) 	“It appears to me that this man Oeti has a personal problem with the Elders of the Church and he’s using his daughter’s stigmata to get his point across – he has a personal vendetta against them. It also appears to me that Oeti wants the Elders of the Church to worship his daughter and just like how he got the PM and other leaders to kiss his daughter’s foot. It was exactly what he wanted. If you watch Toa’s video taken in Rome, where she’s crying on the bed, it appears to be the cry of one who has a guilty conscience because of what she had done and of the sins she committed.” In their natural and ordinary meaning says that the plaintiffs’ have been embarking on some elaborate plan to mislead the Church leaders, political leaders and the people of Samoa.
(iii) 	The first plaintiff has a personal vendetta against the Church Elders is clearly stated.
(iv) 	“He’s (Opapo) just as sick in the head as his daughter and those who put their faith, trust and belief in this stigmata fiasco,” in their natural and ordinary meaning says that both plaintiffs’ are mentally impaired. 
(v) 	The first plaintiff has been brainwashing, controlling and abusing the second plaintiff, is clearly stated in the article.	
33. 	The question is, can an objective ordinary person find the (above) words and statements in their natural and ordinary meanings to carry the meanings as pleaded by the plaintiffs?   What the ordinary man will infer from those words is to be regarded as part of their natural and ordinary meaning and does not require the addition of an innuendo. 
34. 	The defendant says that the letter read on its own is not defamatory. I disagree.
35. 	I find on the balance of probabilities that those words or statements in paragraph 32 (i), (iv) and (v) in the context of the letter can be interpreted or taken by the objective ordinary reader in their natural and ordinary meanings to say or mean the things as pleaded. The reference to a DNA test to be carried clearly questions the paternity of the second plaintiff’s children. The statement, “He’s just as sick in the head as his daughter,” suggests that the plaintiffs are somewhat mentally impaired.  Furthermore, the words, “This young woman Toa is a victim of being brainwashed from a young age,” associates with a dysfunctional relationship – that being the controlling nature of the first plaintiff and the vulnerability of the second plaintiff.
36. 	However, I do not think that an ordinary person would reasonably find that the natural and ordinary meaning of the words in paragraph 32 (ii) (above) in the context of the letter would point towards an elaborate plan by the plaintiffs to mislead the church leaders, political leaders and people of Samoa.  That is (in my view) reading too much into the words. 
37. 	The principles or authorities have stated that innuendo is not necessary where the words complained of in their natural and ordinary meaning are found to be defamatory. However, I will nevertheless consider whether there are innuendos and if so, whether they are in fact defamatory in the event that I may be wrong.
38. 	It is clear that when the letter in question was published by the Samoa Observer, the ‘stigmata’ issue had already been covered extensively by way of several writings and opinions already published by the Samoa Observer. It is not contested that prior to the letter being published by the Samoa Observer on 29 March 2017. OLP had written two blogs on this very subject matter on the 26th and 27th March 2017 as pleaded by the Plaintiffs.
Are the words complained of in their natural and ordinary meaning capable of carrying the meanings or innuendos pleaded by the plaintiffs?
39. 	Innuendo is where the words bear a further meaning because of the existence of extrinsic facts known only to a limited group of persons.
40. 	Unlike the situation where natural and ordinary meaning is in issue, evidence is admissible in the case of an innuendo to show the sense in which people to whom the words were published understood them. Extrinsic facts must be in existence at the time the statement was published. 
41. 	The plaintiffs plead that the following statements or words taken in their natural and ordinary meanings were understood to mean (innuendos) that:
(a) 	There was an incestuous relationship between the First and Second Plaintiffs, thereby committing a crime;
(b) 	That the Second Plaintiff’s children were fathered by the First Plaintiff;
(c) 	That the Second Plaintiff’s children were fathered by someone other than her children’s biological father; 
(d) 	That the First and Second Plaintiffs and at least two of the First Plaintiff’s other children were aware of and hiding some illicit relationship relating to the paternity of the Second Plaintiff’s children; 
(e) 	The first plaintiff has been abusing, controlling and brainwashing the second plaintiff from a young age;
(f) 	The first and second plaintiffs’ have been embarking on an elaborate plan to mislead Church leaders, the political leaders and the people of Samoa in general; 
(g) 	The first plaintiff has a vendetta against the Church elders and that he and his daughter’s actions are a result of that vendetta;
(h) 	The first and second plaintiffs are mentally impaired; and
(i) 	The first and second plaintiffs are cruel and perverted. 
42. 	The plaintiffs plead that parts of what constituted defamation is that there was innuendo placed on it which they say relies on some other facts that are known to a certain group of people. The plaintiffs contend that innuendo is established when people (members of the public) had read the letter or letters on OLP together with the article published by the defendant and come up with a meaning or an imputation that is defamatory regardless of whether the publisher of Samoa Observer knew of OLP or the letters being published on OLP. Innuendo (plaintiffs’ say) is established.
43. 	Reverend Misiperetiso in his evidence said he heard about writings on OLP accusing the first plaintiff and the second plaintiff of incest and that the first plaintiff fathered the second plaintiff’s children so when he read the letter published by the Samoa Observer he knew it was referring to the allegations of incest. He said that this created gossip around the people he came across and was making a mockery of the first plaintiff which he believed led to the Church Council removing Reverend Opapo from his congregation.
44. 	The defendant through the evidence of its newspaper editor, Mataafa Keni Lesa says that the letter published was the opinion or comments of the writer “M.R.” The defendant says that the sting of the defamation claim by the plaintiffs is the “incestuous relationship” that is conveyed on the 27 March blog on OLP. The defendant contends that the article in Samoa Observer on 29 March makes no reference to any incestuous relationship and is different from the blog posted on OLP on 27 March. The letter of 27 March 2017 on OLP that is titled, “Stigmata and Incest with the Father,” contains allegations of incest between the plaintiffs. 
45. 	That may be so but without referring to the letters on OLP, the reference to DNA testing in that paragraph in its ordinary and natural meaning implies or questions the paternity of the second plaintiff’s children. The letter read together with the two letters on OLP does imply some incestuous relationship or something sinister between the first and second plaintiff.
46. 	I find that the hypothetical ordinary person would find that the following paragraphs do carry the following innuendos:
(i) 	The paragraph referring to a D.N.A. tests to be carried out on both the second plaintiff’s children carry the following innuendos:
•	That the Second Plaintiff’s children were fathered by someone other than her children’s biological father;
•	That at least two of the First Plaintiff’s other children were aware of and hiding some illicit relationship relating to the paternity of the Second Plaintiff’s children;
•	That there was an incestuous relationship between the plaintiffs.

(ii) 	The paragraph, “He is just as sick in the head as his daughter,” carries the innuendo that both plaintiffs are mentally impaired.
(iii) 	The paragraph, “Right from the beginning of this stigmata saga, it has always been Toa and her father but the sister, brother and mother are never to be seen,” followed by, “This young woman Toa is a victim of being brainwashed from a young age,” carries the innuendo that the first plaintiff have been controlling and brainwashing the second plaintiff from a young age.
47. 	However, I still do not find the innuendos of an elaborate plan to mislead the Church; or that the actions of the first plaintiff or his daughter’s was an elaborate plan or a result of a vendetta against the Church could be derived if the letter is read in the context of what has been written and published on events that occurred between the first plaintiff and the EFKS Church Elders.
48. 	Stigmata is mainly associated with the Catholic faith. The first plaintiff is a church minister of the Congregation Christian Church of Samoa or EFKS and the second plaintiff is his daughter. The second plaintiff having the signs of stigmata is the first of its kind in Samoa and with Samoa being a Christian nation the issue would nonetheless draw polarised views evident through various opinions, comments and articles on social media and also some being published by Samoa Observer.
49. 	The first plaintiff was relieved of his pastoral duties by the EFKS in April 2017 citing disobedience. He in turn refuted the decision by EFKS calling it ‘undemocratic and unchristian’ in a press release carried by Talamua Newspaper. Prior to being stripped of his Ministerial duties, the EFKS was reported to have informed the first plaintiff to remove the statues of Mary from inside the EFKS church where he was serving. 
50. 	The first plaintiff gave evidence and said that the letter published led to the EFKS Elders (Komiti a Toeaiina) stripping him of his pastoral duties in March 2018. As reported by the Samoa Observer in January 2017, there were already rumours that the first plaintiff could be stood down by the EFKS Elders Committee which in February 2017 he was stood down or stripped of his pastoral role by the EFKS Elders Committee. On 22 March 2017 the first plaintiff confirmed to Talamua Newspaper that he was giving up his pastoral duties following reports of his termination by EFKS. 
51. 	I do not accept the evidence of the first plaintiff and that of Rev. Misiperetiso that the letter led to the first plaintiff being stripped of his pastoral duties. He was already stripped of his pastoral duties prior to the letter being published by the Samoa Observer.  
Are the innuendos pleaded by the plaintiffs defamatory? 
52. 	The measure by which a word is considered defamatory or not is in accordance with the context in which they appear. There is authority to the effect that a plaintiff can sue in respect of a series of articles. It may well be also that a newspaper could be successfully sued in respect of an article which is defamatory when read in the light of prior news items published or broadcast by other media. If such items can be regarded as part of the general knowledge of the community, they are arguably part of the context in which the latest contribution has been published.
53. 	It is not enough for the plaintiff to have been lowered in the eyes of a small group whose standards are not the standards of the wider community; for example, gangs and the criminal underworld. The Plaintiffs must be lowered in the eyes of members of a respective segment of society.  In this case the EFKS Elders Committee or Council is such group. However, the letter published by the Samoa Observer on 29th March 2017 cannot be said to be solely responsible for the first plaintiff being stood down or stripped of his pastoral duties. The first plaintiff was already stood down prior to the letter being published.  The first plaintiff himself confirmed to Talamua Newspaper that he was giving up his pastoral duties following reports of his termination by EFKS. 
54. 	Given what has been published and the personal acknowledgement by the first plaintiff to the media of him being stood down and his views of the decision by EFKS, I find the following words that the first plaintiff has a personal vendetta against the church may be a statement of fact or misstatement of fact or false statement but those words are not at all defamatory. 
55. 	However, I have no doubt that the following innuendos pleaded would lower the plaintiffs in the estimation of right-thinking members of society generally.
•	That the Second Plaintiff’s children were fathered by someone other than her children’s biological father;
•	That at least two of the First Plaintiff’s other children were aware of and hiding some illicit relationship relating to the paternity of the Second Plaintiff’s children;
•	That there was an incestuous relationship between the plaintiffs;
•	Both plaintiffs are mentally impaired;
•	The first plaintiff has been controlling and brainwashing the second plaintiff from a young age.
56. 	Statements where they are found to be defamatory do not preclude the operation of the fair comment defence. The defendant pleaded the defence of fair comment which is a complete defence to a claim of defamation. 
Fair Comment 
57. 	The defence of fair comment applies only to the public dimension of the topics under discussion.
58. 	In order for the defence to succeed the defendant must establish the following:
(i) 	The statement must be one of comment or opinion and not a statement of fact; 
(ii) 	The comment or opinion or its mixture must be based on a substratum of true facts;
(iii) 	The comment must be made on a matter of public interest; and
59. 	The comment or opinion must be fair.  Fair in this context means ‘honest’.
60. 	A defendant pleading fair comment must prove affirmatively that the comment represented his own honest opinion. The objective test is, could any man however exaggerated or obstinate his views honestly express that opinion on the proved facts? 
61. 	It has long been established that the state of mind of the publisher of the alleged libel is directly in issue where there is a plea of fair comment. When publishing articles or letters, the publishers themselves must honestly hold the opinions expressed in the impugned letter. In the context of the present case this must mean honesty of belief in the opinions expressed in the letter complained of and was not actuated by malice.
62. 	The defendant had to firstly establish the defence of fair comment. Once the defence is established, the onus then shifts to the plaintiff to prove that the decision by the defendant to publish the letter was actuated by malice.
	“Malice is not limited to spite or ill will but includes any direct motive or ulterior purpose and will be established if the plaintiff can prove that the defendant was not acting honestly when he published the comment.”
63. 	I will address first the issue raised by Counsel as to whether the defence of fair comment is available in Samoa to the news media in relation to publishing letters to the editor.
Is the defence of ‘fair comment’ available to the defendant as publisher of letters to the editor?
64. 	The defence of ‘fair comment’ is available under the law. Article 13(1)(a) of the Constitution protects the right of every Samoan citizen to freedom of speech and expression. This right is restricted by Article 13(2) which refers to “reasonable restrictions on the exercise of the right to freedom of speech and expression.” 
65. 	There have been many judicial pronouncements on how vital to the functioning of a democratic society is the freedom to comment on matters of public interest. I refer to two cases: 
	Scott L.J. in Lyon v The Daily Telegraph Ltd said:
	“The reason why, once a plea of fair comment is established, there is no libel, is that it is in the public interest to have free discussion of matters of public interest.”
	and at p.753.
	“It [the right to fair comment] is one of the fundamental rights of free speech and writing which are so dear to the British nation, and it is of vital importance to the rule of law on which we depend for our personal freedom that the courts should preserve the right of ‘fair comment’ undiminished and unimpaired” 
	Lord Denning M.R. in Slim v The Daily Telegraph Ltd said:
	“...the right to fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements.”
66. 	Authorities in different parts of the Commonwealth differed on this as highlighted in the following cases: 
•	In the Canadian Supreme Court case of Chernesky v Armadale Publishers Ltd  the Supreme Court adopted the subjective test requiring the defendant (a newspaper owner editor and publisher of a letter submitted by non-employees who did not give evidence) to prove that he truly believed what he was saying. The majority held that “it must be the honest expression of the writer’s opinion and each publisher in relying on the defence of fair comment is in exactly the same position as the original writer.”  
•	Twenty nine years later the Supreme Court of Canada in WIC Radio Ltd v Simpson overturned or reversed the decision in Chernesky by adopting the objective test and held the defence of fair comment to be established. This decision meant that the defence of fair comment is available to the news media. 
•	The British House of Lords in Telnikoff v Matusevitch was an action for libel brought by one Russian émigré against another. An article written by Mr Matusevich was published by the Daily Telegraph to which the plaintiff, Mr Telnikoff took strong exception to. It was held that comment should be fair in objective sense and onus then on plaintiff to prove malice.
67. 	New Zealand amended its Defamation Act 1992 (section 10(2)) to reflect the changes in the common law. The amendment provides the news media the defence of fair comment in relation to material submitted for publication by non-employees. The defendant must however, show that the opinion did not purport to be his own. 
68. 	Samoa needs to keep up with the rest of other jurisdictions and develop its jurisprudence to be at par with the others. Most importantly, the right to fair comment is an essential element of the right to freedom of speech guaranteed under Article 13(1)(a) of the Constitution. The defence of fair comment is crucial in restoring the balance between free speech and freedom of the media on the one hand, and reputation on the other. The defence of ‘fair comment’ is available under the law and in my view, to anyone including newspapers who publish materials submitted by non-employees. 
Is the defence of fair comment made out?
69. 	The defence of fair comment need only be considered in relation to the following that I have found to be defamatory:
•	“He is just as sick in the head as his daughter.”
•	“It was exactly what he wanted. If you watch Toa’s video taken in Rome, where she’s crying on the bed, it appears to be the cry of one who has a guilty conscience because of what she had done and of the sins she committed.”
•	“The police should move in and ask for D.N.A. tests to be carried out on both Toa’s children and interview both Toa’s sister and brother who know the truth, in order to put a stop to this madness.”  
•	“This young woman Toa is a victim of being brainwashed from a young age.”
	Which words or statements are found in their natural and ordinary meanings and/or to convey the following meanings (innuendo):
•	That the Second Plaintiff’s children were fathered by someone other than her children’s biological father;
•	That at least two of the First Plaintiff’s other children were aware of and hiding some illicit relationship relating to the paternity of the Second Plaintiff’s children.
•	That there was an incestuous relationship between the plaintiffs
•	Both plaintiffs are mentally impaired
•	The first plaintiff has been controlling and brainwashing the second plaintiff from a young age.
Matter of public interest
70. 	There is no doubt that the claim of stigmata is a matter of public interest. This is confirmed by the sheer volume of articles, opinions and letters published by the Samoa Observer, Talamua News, internationally by the BBC and on social media by way of OLP. The various publications portray polarising views of the public on the issue and claim of stigmata; including the conflicting views of the first plaintiff and the EFKS Church Elders.
Comment or opinion(or its mixture) must be based on a substratum of true facts 
71. 	The defendant submitted that numerous publications and writings voicing different perspectives and views held by the public on the matter is the factual background to the letter published by the Samoa Observer. This (the defendant argues) meant that the letter published is the opinion of the writer based on factual background that had already been published. 
72. 	In the present case the state of mind of the defendant is established by the evidence of the editor of Samoa Observer Newspaper, Mataafa Keni Lesa, to the effect that he honestly held the opinion expressed in the letter as the writer’s opinion based on the issue of stigmata that had generated a lot of public interest. 
73. 	The letter published by the Samoa Observer on 29th March was said to have been sent to its online service. Mataafa Keni Lesa says that the Samoa Observer takes responsibility for content that is published in the newspaper. When he came across this letter on the Samoa Observer online, he saw it was from M.R. whom he says always writes to the Samoa Observer on topical issues.  Mataafa Keni Lesa at the time the letter by M.R. was published on 29th March 2017 was not aware of the two letters on OLP dated 26th and 27th March 2017. Mataafa Keni Lesa in his evidence said: 
	“This person M.R. or sometimes known as Mebahel Raguel has been writing a lot of letters in relation to matters of interest to the public. And in this case, this was his opinion on the issue of the stigmata and it was in response to a story that we had published from a press conference where Reverend Opapo (First Plaintiff) had made some comments.”
74. 	What the defendant seemed to be saying is that the statements in the letter published are the opinions or comments of the writer based on what has already been written and made known to the public through the news medium and social media platforms; that is the factual background by which the comments in the letter published by the Samoa Observer on 29th March 2017 was based upon. 
75. 	I accept that various opinions, comments and letters provides the background to the letter but I cannot accept that what had already been written and published prior to the letter can be said to be true facts. That is, just because someone has written prior to the letter being published saying both plaintiffs are mentally impaired can be proof or a fact that they are actually mentally impaired. 
76. 	I do not find that the following statements or words are based on true facts:
•	“He is just as sick in the head as his daughter.”
•	 “It was exactly what he wanted. If you watch Toa’s video taken in Rome, where she’s crying on the bed, it appears to be the cry of one who has a guilty conscience because of what she had done and of the sins she committed.”
•	“The police should move in and ask for D.N.A. tests to be carried out on both Toa’s children and interview both Toa’s sister and brother who know...”  
•	 “This young woman Toa is a victim of being brainwashed from a young age.”
Statement must be a comment or opinion and not a statement of fact.  
77. 	The comment must be understood by the reasonable reader as a comment rather than an imputation of fact. 
78. 	The plaintiffs say that the following are statements of fact and not comment:
•	“He has a personal vendetta against them” The first part was phrased as an opinion but this last part was made a statement of fact.
•	“He is just as sick in the head as his daughter.” The author saying that both plaintiffs are sick in the head.
•	“It also appears to me that Oeti wants the Elders of the Church to worship his daughter and just like how he got the PM and other leaders to kiss his daughter’s foot.” The author stating as a fact that Rev Opapo did manage to get the PM and other leaders to kiss his daughter’s foot which is a misstatement of fact as Rev Opapo gave evidence that no such thing ever happened. 
•	“It was exactly what he wanted” A statement of fact which is based on an untrue fact that Rev Opapo wanted the leaders to kiss his daughter’s foot which never happened.
•	“If you watch Toa’s video taken in Rome, where she’s crying on the bed, it appears to be the cry of one who has a guilty conscience because of what she had done and of the sins she committed.” The last part turned into a statement of fact that she had done something bad and had sinned and thus the guilty conscience.
•	“The police should move in and ask for D.N.A. tests to be carried out on both Toa’s children and interview both Toa’s sister and brother who know the Truth, in order to put a stop to this madness.” They are statements of fact because it indicates that the author knows something about the paternity of the children and stating that the brother and sister know about it 
•	“This young woman Toa is a victim of being brainwashed from a young age.”
79. 	With all the controversy surrounding the claim of stigmata as reflected in media coverage, it distorts one’s perception and makes it difficult to see what is fact from what is opinion or comment. Nevertheless, I find the following to be statements of facts: 
•	“He is just as sick in the head as his daughter.”
•	“...just like how he got the PM and other leaders to kiss his daughter’s foot.”
•	“The police should move in and ask for D.N.A. tests to be carried out on both Toa’s children and interview both Toa’s sister and brother who know the Truth, in order to put a stop to this madness.” 
•	“This young woman Toa is a victim of being brainwashed from a young age.”
Comment or opinion must be fair
80. 	The opinion must be genuine; an opinion that an honest minded person could make on the facts.   The test is an objective one that asks if the comment made was one an honest person could make on the proven facts, however prejudiced, obstinate, or exaggerated his views may be. 
81. 	In democratic societies freedom of speech and expression will prevail over the right to protection of reputation where the publication of seriously defamatory truth serves a public interest. Where no public interest is served by the publication, protection of reputation prevails. This is the case in Samoa as well. It is of fundamental importance in our democratic society to protect the good reputation of individuals.
	“Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person.... A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.”
82. 	I find the comments in reference to a DNA test of the second plaintiffs’ children and to the plaintiffs being sick in the head as degrading and are unfair comments; such comments do not serve any public interest at all and are not based on any true facts. 
83. 	The fact that the plaintiffs did not plead any malice on the part of the defendant for the letter it published is a non-issue because the defence of fair comment has not been made out. 
Conclusion
84. 	In summary, I find as follows:
(i) 	That certain statements or words (paragraph 35) in their ordinary and natural meanings were understood to be defamatory; 
(ii) 	That certain statements or words (paragraph 55) in their natural and ordinary meanings were understood to convey meanings (innuendos) that are defamatory; and
(iii) 	The defence of fair comment has not been made out.
85. 	There now remains the issue of damages and costs.

JUSTICE TUATAGALOA