The Federal Court yesterday dismissed an appeal filed by news portal Malaysiakini and ordered the media company to pay RM550,000 in compensation to Raub Australian Gold Mining (RAGM) in a defamation suit brought against the former.
Malaysiakini reported that it was ordered to pay RM350,000 in costs and damages awarded to RAGM by the Court of Appeal in 2018, and another RM200,000 in costs.
The five-member bench, led by Federal Court judge Vernon Ong Lam Kiat, in a majority 3-2 decision, dismissed the appeal by Mkini Dotcom Sdn Bhd, the company that operates Malaysiakini, and three other former members of the editorial team.
The majority judgment was read by fellow bench member Datuk Abdul Rahman Sebli. Other members of the bench on the majority side were Puan Sri Zaleha Yusof and Dauk Seri Hasnah Mohammed Hashim.
The minority decision came from judge Harmindar Singh Dhaliwal with Ong concurring with him.
In his judgment, Rahman said the lower court is correct in holding that the defence of reportage must be specifically pleaded as it is distinct and separate from the Reynolds defence of responsible journalism.
Reportage is a common law defence against defamation suits, usually involving media organisations republishing unproven accusations about public figures, so long as the reporting is unbiased and in the public interest.
The Reynolds defence of responsible journalism is that there must be an attempt by the media to contact the other party before publishing the article.
Rahman said from the pleadings and the contents of the articles and videos, Malaysiakini had subscribed to a belief in the truth and accuracy of the defamatory imputations.
“There is no averment in the statement of defence denying that they had subscribed to such belief and that they were simply reporting in a neutral fashion,” he said.
“A vital element of reportage is, therefore, missing from the pleadings to entitle the appellants (Malaysiakini) to rely on the defence of reportage.”
He also held that loss of goodwill can be recovered as a component of defamatory damages by RAGM that has gone into insolvency.
The gold mine has since gone into voluntary liquidation and is no longer in operation.
Rahman said the majority court decision ruled in the affirmative on a legal question that it is proper to award general damages for loss of goodwill and vindication of reputation to RAGM, which has independently been subjected to a voluntary winding-up by its creditors.
In the dissenting judgment, Harmindar said the whole story about the fears arising from RAGM’s gold mining activities was already in the public consciousness as evidence disclosed that since 1996, there were at least 26 news articles from various news media.
“To impose a burden on the media to engage independent experts prior to publication would not just be an onerous undertaking but also impractical as the function of the media is to report the news as it unfolds,” he said.
He said the impugned articles and video, although damaging to RAGM, were on a matter of great public concern, were balanced in content and tone, and critically, did not assert the truth of the allegations reported.
Harmindar said the press and journalists play a crucial role in reporting matters of public interest and matters of serious public concern, adding that in their role as a watchdog for the people, the awareness created by such media reports will by and large lead to greater protection of society as a whole.
“In carrying out this duty, the press may at times get the facts wrong. However, in matters of public interest so long as the press holds a reasonable belief that the publication is in the public interest or that the publication is a fair, accurate and impartial account of the dispute, the press and the journalists are entitled to the protection of the law,” he added.
RAGM filed the suit against Malaysiakini for defamation and malicious falsehood in respect of three articles and two videos published in the portal in 2012 on health concerns of Bukit Koman villagers over RAGM’s gold mining activities.
On May 23, 2016, the High Court dismissed RAGM’s claim against Malaysiakini and the other three defendants, but on Jan 11, 2018, the Court of Appeal reversed the High Court’s decision and ordered them to pay RM200,000 in damages and RM150,000 in legal costs.
Datuk Cyrus Das represented Malaysiakini while Tan Sri Cecil Abraham acted for RAGM.
“Malaysiakini will not be seeking public donations in view of the economic downturn due to Covid-19. The news portal will be using its legal defence fund. It had raised RM350,000 to pay RAGM in 2018,” the news portal said.
Malaysiakini editor-in-chief Steven Gan said the decision was a huge blow for public interest journalism.
“We are disappointed by the decision. We were carrying out our duty as journalists in reporting the health concerns of the Bukit Koman villagers.
“In an earlier decision involving a lawsuit filed by the gold mine company against the villagers, this same court, in delivering victory to the villagers, said they have the right to express their concerns over the gold mining.
“However, in our case, we were found to have committed defamation for primarily reporting what they said,” Malaysiakini reported him saying after the decision.
Malaysiakini CEO Premesh Chandran said that it is pertinent to have the media speak up and hold those in power accountable.
“We take heart that the minority judgement has noted legal changes among Commonwealth countries towards supporting the critical role the media plays in voicing public concerns.
“In these times of crisis, and with so many people facing extreme hardship, it’s critical that the media speaks up and holds those in power to account. Hence, we will continue with our duty to report news and views that matter, without fear or favour, with accuracy and balance. Malaysians deserve no less.
“Given the dire situation in the country, we will not be asking for public donations, it’s more important that families are kept afloat,” he reportedly said.