Faipopo jailed for Facebook post libelling P.M.
For the first time, the District Court has sentenced a man to jail over a Facebook post that made defamatory statement against Prime Minister, Tuliaepa Dr. Sailele Malielegaoi.
Malele Paulo - also known as King Faipopo - was sentenced to 7 weeks in jail for one count of criminal libel on Friday afternoon.
Judge Alalatoa Rosella Papalii delivered the decision yesterday after she denied a dramatic eleventh-hour application from Paulo to revert his earlier guilty plea to not guilty.
The offence of Criminal Libel was only brought back onto Samoan statute books in late 2017.
In sentencing Malele, the Judge also ordered that he should remove the offensive posts from his Facebook page permanently.
Subsequently, Judge Alalatoa also ordered Facebook to take down the O Le Palemia blogger page that she concluded Malele is associated with.
“I have determined that the context of your post the subject of this proceeding is contrary to Facebook Community Guideline standard and Samoan law and therefore order its permanent removal from Facebook,” the Court ordered.
“I further order that any future posts of a similar nature be reported directly to Facebook under this Order and Facebook is to have such content removed forthwith.
“By the same token, I further order that the O le Palemia Facebook page which you are associated with be shut down permanently as it also infringes Facebook’s community standards.”
The Judge instructed the prosecution to deliver a copy of her decision to Facebook for them to execute the orders.
Paulo had initially faced a total of 14 charges that were subject to allegations made by the defendant in a social media post while he was in Australia.
The charges were withdrawn by leave following plea negotiations while prosecution proceeded with one charge against Paulo.
The charge stemmed from a post made by the Samoan based in Australia around May 2019 where he allegedly called the Prime Minister a conman, liar and murderer.
Paulo pleaded guilty to the charge but had later asked the Court to vacate his guilty plea.
His defence was he was “lured” into the prosecution’s assurance that he will be given a discharge without conviction for the charge.
The Court heard that prosecution had opposed a discharge without conviction application and asked to impose a custodial sentence.
Judge Alalatoa said it was clear on the day of the hearing for change of plea that the Attorney General had clearly replied they will take a neutral stance on the proposed application for discharge.
She also reminded counsel that regardless of an agreement in relation to sentence, the agreement does not bind the Court.
“A suggestion that it does has the tendency to abrogate the duties of this Court to the rule of law and whittle its discretion to pass appropriate sentences as justice requires in each case,” she said. “You must all remember that the Court has the sole discretion to pass sentence.
“You do not dictate this, Malele. Even if the prosecution consented to a discharge proposal, the Court still has a duty to determine and assess whether the disproportionality test for a discharge application is satisfied.”
In considering the aggravating feature of the offence, Judge Alalatoa agreed with prosecution’s argument that it was crude, demeaning, defamatory, intentional and premeditated.
“This was not some impromptu, accidental post or honest mistake or even an inadvertent error,” she pointed out.
“You had thought it through, rehearsed your lines like a White Sunday tauloto and even dressed the part to go with the image of the celebrity superstar you think you are.
“It is not the first time you have done this. It is a repeated offending.
“You had done it previously in the video clips you digitally published on social media via YouTube and your Facebook page forming the original charges you faced…”
The Judge also put emphasise on the Prime Minister and the years it took for him to build and earn his good reputation locally and internationally.
In addition, the Judge said the post is not the ordinary published letter to a mainstream newspaper or third party where the number of viewers are limited.
It was published on a social media network that is globally and publically accessible to your Facebook friends, their friends and others, she added.
According to evidence, the post from Maelele shows that at the time of printing about 636 people had reacted to the post and shred 62 times.
The Judge is certain there were many others that shared the post through other means of disseminating information such as screenshot of the post and other gadgets.
“The moral of the story is, your defaming publications have had a far reaching audience with the impact instantaneous,” she ruled.
“The post generated a thread of 101 comments from your supporters including your lawyer Sapolu and your wife where the complainant was further harassed, ridiculed, belittled and made the laughing stock and subject of cyber bullying.
“In fact some of the comments used profanity and colourful expletives even space in this decision to describe it would be a total waste of time.”
The Judge also raised issues with the defendant not removing the post from his Facebook page and other video clips published on Youtube he created even after he was charged.
It was Paulo’s defence that his Facebook page was hacked and could not remove the online content.
But Judge Alalatoa did not believe this.
She said the defendant did not thought to remove the video clips and Facebook post when he was charged to mitigate the offence.
The Judge made reference to Facebook having policies and standards in place that can remove fake news, hate speech and other cyber bullying content that the defendant could have utilised.
“So your saying that your page was hacked is but another attempt to flout responsibility, it also indicates your refusal to take positive steps to mitigate the sting of the harm you inflicted on the victim,” she said.
“The contents of the post were false, malicious, inflammatory, inciteful, insulting, abusive and calculated to injure and vilify the victim exposing him to contempt and hatred.”
Judge Alalatoa said the actions of the defendant can only be described as willful misrepresentation and intentional sophistry calculated to manipulate and mislead the public especially the unwary and ignorant.
“There is no truth at all to the statement you made rather it was a mixture of fake news riddled with deliberate lies intended to expose the victim to unnecessary shame, hatred, contempt and ridicule,” she said.
“We most certainly saw this in the thread of comments incited by your post. It is character assassination at its worst.”
The Judge referred to a Samoan saying that stones will erode but words will never decay to describe the harm and injury to the Prime Minister by Paulo.
“No amount of penalty or monetary compensation for damages will erase the defamatory words you deliberately posted and disseminated.
“The post caused emotional turmoil, psychological harm, anxiety and distress to the victim especially his family. As Samoans, we have a natural instinct to protect those we love when attacked.”
She said this was not surprising as the Restorative of Justice Court report, Paulo spoke more about the harm caused to him than the victim.
Paulo had also expressed how he was harmed and hurt by the Constitution.
“Again this shows your lack of repentance, remorse and refusal to take accountability for the offending,” she said.
“In Court, your counsel submitted that there are worst crimes out there including violence against women and children and this is only minor compared to those crimes.
“The submission is at best a political statement made for the benefit of the media present in Court at the time and therefore irrelevant to the circumstances of your offending and unmeritorious.”
The Judge also took time to discuss the defence downplaying the magnitude of the harm caused to the Prime Minister as being only words and nothing physical.
She referred to a Court of Appeal case of Malifa versus Sapolu and Alesana where politicians are expected to have broad shoulders and in the interest of freedom of speech and democracy they must put up with criticisms even of strong and unfair kind.
“But there is a line between severe criticism and on the one hand and vilification or character assassination on the other,” the Court heard.
Judge Alalatoa said the offending of Paulo was in every sense crossed the line of freedom of expression.
“The fact of the matter is, the victim who is normally un-rattled by endless severe criticisms against him was so deeply affected that he was prompted to file this complaint to right the wrong you inflicted and to clear his good name you tarnished.”
In terms of mitigating factors, the Judge said she will not give full credit to Paulo as it was delayed and he had sought to retract his plea to not guilty.
She noted that the defendant had written to the Prime Minister apologising to him but she doubted that he was genuine in his remorse.
“I say this because of your actions to date. I refer to the RJC Report where Dr. Ioane’s observed having met with you, that you are unable to apologise with authenticity. The last minute move to reverse your plea similarly indicates lack of remorse.
“An apology has to be voluntary and come from the heart,” she said referring to the letter written by Paulo.
“In my view however, the letter of apology is only window dressing. It was written with the sole purpose of appeasing and misleading the Court into believing that you are genuinely remorseful when in actual fact you are not.”
Judge Alalatoa also spoke about a submission from defence counsel that there was provocation of some sort mitigating the offence.
The argument being that Paulo had come to Samoa earlier this year to attend his mother’s funeral but had to face stringent bail conditions and almost missed his mother’s funeral.
“I am baffled by this submission which is untenable,” she said.
“In fact it is overly exaggerated. I remind you and your counsel that you are not starring in a movie.
“What you allege here illustrates continuous ill will and bad faith on your part. The funeral, arrest and bail all took place in February.
“Why you waited until May to make another post and claim you were provoked by incidents which allegedly took place three months earlier is beyond comprehension.”
Lastly, the Judge also spoke about the Constitution Article 13 that deals with the right of all citizens to freedom of speech and expression.
She made it clear that this freedom or right has its limitation.
“It is not absolute,” she emphasised.
“The retention of criminal libel under the repealed legislation and its reintroduction in 2017 in my respectful view reinforces the recognition by our community of the fundamental importance of reputation and the inherent dignity of all persons. But we are not alone in that regard. After all the protection of reputation in the form of criminal libel is similarly embraced by many other free and democratic societies including Canada, Australia…”
She referred back to the post by Paulo saying it was intended to lower the victim in the minds of members of society and fellow politicians and international communities.
“In my view it was used to propagate political interests and hidden agendas of yourself and those you are associated with,” Judge Alalatoa pointed out.
“This view is supported by your admission to Dr Ioane as recorded in the R.J.C. report that you described yourself as the voice of the voiceless and you acknowledged the support of the O.L.P. bloggers and S.S.I.G.
“So there is no doubt you are associated to these two groups.”
About the Ole Palemia blogger, the Judge said it is a fake Facebook page of anonymous ghostwriters similar to a gossip column generating fake news.
“It is known for its character assassination blogs and crusade against the victim, prominent government and public officials and private individuals,” said the District Court Judge.
“The page however has no legal standing or credibility and unreliable. It is therefore unworthy of discussion in this decision.
“You want to openly criticise the complainant, government and whoever else, do not hide behind a keyboard but put your name to it like what the Samoa Observer newspaper is doing.
“They openly criticize provided it is the truth. In return they criticized by the victim but at least we all know the identity of those involved.
“So long as it is the truth you are protected.”
Judge Alalatoa urged Paulo that should be want to make changes to the country he should run for the general election if he is eligible.
“But embarking on character assassination based on fabricated lies as you have done here, it is not the answer; leave a rainbow in the cloud, not the other way around.”
Having considered the totality of the offence, Judge Alalatoa said an imprisonment term is the appropriate sentence.
“I have considered all other alternative sentences and of the view it does not meet the principles and purposes of sentence canvassed above,” she said.
“The sentence I pass will be with the mindset to curb cyber bullying, leading to loss of lives and reputation and other problems our society do not need.”
The Judge had also acknowledged the bravery of a student from Vaiola College that had his story published in the Samoa Observer for speaking up about cyber bullying and how it took his sister’s life.
“Malele, your O.L.P. associates and others who are doing this as a full time job, that is the reality of the impact of your reckless and malicious actions,” said Judge Alalatoa.
“It is psychologically and emotionally traumatising causing harms to innocent lives even self-inflicted loss of life. It must be stopped.”
The Judge sentenced Malele with a starting point of 9 weeks and an uplift of two weeks for aggravating factors and vexatious change of plea application leading to a total of 11 weeks.
She deducted time for Malele’s personal circumstances, good character prior to offending and guilty plea and left him to serve 7 weeks in prison.
Malele was represented by Unasa Iuni Sapolu and Josefina Fuimaono Sapolu.
The prosecutor in the matter was Attorney General, Lemalu Hermann Retzlaff assisted by lawyer Iliganoa Atoa