Ombudsman cautions Govt. against Facebook ban

Ombudsman, Maiava Iulai Toma, has warned the Government against banning Facebook, saying it would clamp down on the fundamental freedom of speech guaranteed by the Constitution.

In a statement issued by the Ombudsman's office, which is also the National Human Rights Institution (N.H.R.I.) of Samoa, it said if Facebook is banned in Samoa, the Government would be “curtailing” freedom of speech and depriving Samoan people of their fundamental entitlements. 

“To ban Facebook in Samoa, even for a short time because of malevolent speech, is an extremely grave step to contemplate,” the Ombudsman said.  “The Government, in no uncertain terms, would be curtailing in a very telling way the ability of the people of Samoa to speak and to communicate freely." 

Earlier this month, Prime Minister Tuilaepa Dr. Sa'ilele Malielegaoi revived the call for a Facebook ban, arguing that too many “faceless” users were spreading lies and defaming people on the site." 

He said other social media sites are also on the chopping block and told listeners to stop spreading misinformation ahead of the general election. 

But Maiava, a leading academic and activist in the field of human rights, has implored Government not to take such a drastic step.

He said the right to freedom of speech could be better understood and engaged with, and that the whole of society needs to take responsibility for tackling hate speech propagated online.

“Valuable as it is for Samoans to enjoy full freedom of expression, it cannot be denied that some of our people have been greatly distressed by postings in social media directed at them and their families,” he said.

“The problem is that some people believe or want to believe that freedom of speech is having ‘the right to say whatever I like, about whoever and whatever I like, however I like, whenever I like’. 

“This is a serious misconception. No fundamental freedom is absolute.”

Because of this, it falls to governments to subject this freedom to reasonable restrictions, which Maiava argues has already been done.

Under the Crimes Act 2013, it is an offence to incite hostility, and breaking that law can land you in prison for up to two years.

It is also a crime to publish misinformation about someone with the thought to harm that person’s reputation, an act that could see someone in prison for up to three years and fined to boot.

Laws to reasonably restrict freedom of speech, or any other fundamental freedom under the Constitution, have to be set out clearly under the law in an understandable way.

The Government should be able to say why those restrictions are needed, and that they are proportionate to those needs, with safeguards in place to protect people from abuse like an appeals process.

“Restrictions that do not comply with these conditions violate freedom of expression,” Maiava said.

Banning Facebook or any other website may not meet this threshold, where a restriction is legal, legitimate, necessary and proportionate.

Tuilaepa, both last month and in 2018, has called on a Facebook ban to crack down on hate speech, in particular that which is directed towards him and other politicians or high profile people.

“The Government will do what it takes to settle this matter once and for all, even if it means banning Facebook,” Tuilaepa said at the time. 

Maiava warned that a social media ban should not be played with merely for political ends when it threatens a fundamental freedom protected in the Constitution of Samoa.

“Frustrating as it must be to be dogged by political foes that are enabled by Facebook to exist without faces, the curtailment in a massive way of a democratic country’s freedom of speech to advance political ends is wrong.”

Addressing hate speech does need to be done, but this work does mean curtailing freedom of speech, but rather ensuring hate speech turns into violence.

 “The Ombudsman Office/N.H.R.I. also believes that combating hate speech cannot simply be left to the law to address,” Maiava continued.

“Such problems call for the combined effort of everyone – parents, schools, religious leaders, policymakers, journalists and the general public – to address the main drivers of hate speech so that the fundamental freedoms of our society are upheld.”

Restricting freedom of speech and regulating hate speech should come with checks and balances. The Office of the Ombudsman outlines this below:

Specifics: Any restriction should be as specific as possible. It would be wrong to ban an entire website because of a problem with one page

National security and public order: These terms must be precisely defined in law to prevent them being used as excuses for excessive restrictions.

Morals: This is a very subjective area, but any restrictions must not be based on a single tradition or religion and must not discriminate against anyone living in a particular country.

Rights and reputations of others: Public officials should tolerate more criticism than private individuals. So defamation laws that stop legitimate criticism of a government or public official, violate the right to free speech.

Blasphemy: Protecting abstract concepts, religious beliefs or other beliefs or the sensibilities of people that believe them is not grounds for restricting freedom of speech.

Media and journalists: Journalists and bloggers face particular risks because of the work they do. Countries therefore have a responsibility to protect their right to freedom of speech. Restrictions on Newspapers, TV stations, etc. can affect everyone’s right to freedom of expression.

Whistle-blowers: Government should never bring criminal proceedings against anyone who reveals information about human rights abuses.

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