Along with the ruling came an order for the news portal to pay RAGM an additional RM200,000 in costs, on top of the RM350,000 in costs and damages awarded by the Court of Appeal in 2018.

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 decision was a split 3-2 majority by the five-member panel which was chaired by Federal Court judge Vernon Ong Lam Kiat.

The majority judgment in favour of dismissing Malaysiakini’s appeal was read by fellow bench member Abdul Rahman Sebli. Other members of the bench on the majority side were Zaleha Yusof and Hasnah Mohammed Hashim.

The minority decision in favour of allowing Malaysiakini's appeal was read out by bench member Harmindar Singh Dhaliwal. Ong was part of the minority judgment.

Counsel Cyrus Das represented Malaysiakini while Cecil Abraham acted for RAGM.

In 2016, the High Court in Kuala Lumpur ruled in favour of Malaysiakini on grounds that the news organisation had succeeded in its defence of responsible journalism and reportage.

Reportage is a defence against defamation lawsuits, usually involving media organisations republishing unproven accusations about public figures so long as the reporting is unbiased and in the public interest.

The High Court also ruled that Malaysiakini had not acted in malice.

In 2018, the Court of Appeal overturned the decision, ruling that the articles in question were "reckless, accusatory and damaging in tone".

The Court of Appeal ordered the news portal to pay RM200,000 in damages and RM150,000 in costs. Today, the Federal Court imposed additional costs of RM200,000.

Abraham sought for the apex court to impose costs at RM250,000, while Das pleaded for costs to be set at RM30,000.

Malaysiakini editor-in-chief Steven Gan said the decision today 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 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," Gan said.

Malaysiakini CEO Premesh Chandran noted that today's split decision went into depth of the boundaries of law covering defamation and with the differing views between the majority and minority verdicts, it would serve as fertile ground for debate.

"We take heart that the minority judgment 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," Premesh said.

He expressed gratitude to Malaysiakini's legal team as well as friends and supporters who backed the news portal all the way.

Gan said that Malaysiakini will not be asking for public donation this time as it had raised RM270,000 beyond the RM500,000 fine that was imposed by the Federal Court for contempt earlier this year.

“Those who want to support us can do so by subscribing to Malaysiakini or pay for another person’s subscription,” he said.

During proceedings conducted via Zoom this morning, the Federal Court’s majority decision read out by Rahman agreed with the Court of Appeal finding that Malaysiakini failed to fulfil the Reynolds defence of responsible journalism by taking appropriate and reasonable steps to verify the truth and accuracy of the articles.

Rahman said there were many aspects of the articles and videos that were verifiable and which needed verification, but which the appellants did not bother to check for truth and accuracy.

The Court of Appeal then had ruled that, among others, Malaysiakini should have tried to seek expert verifications on the allegation involving the mining at Bukit Koman in Raub, Pahang.

During the Court of Appeal hearing, RAGM’s legal team submitted that Malaysiakini was obliged to independently seek a scientific determination of the truth of the allegation of pollution and health hazards, from experts such as the Health Ministry or the ministry dealing with the environment, among others.

“The appellants’ failed attempts to get clarification from a representative of the respondent (RAGM) in connection with the articles and videos are not a valid excuse in all the circumstances of the case to go ahead with the publication of the defamatory articles and videos.

“After all, the respondent had explained why it would not comment on the stories, and this was because of the pending judicial review application.

“But more importantly, it cannot be the philosophy behind Reynolds that if the claimant refuses to comment on the story, the journalist is thus given a free pass to publish the material in a way that is defamatory of the claimant.

“The burden remains with the journalist to verify the truth and accuracy of what is published,” Rahman said.

He also pointed out that the three-person majority bench today concurred with the Court of Appeal’s ruling that the defence of reportage should have first been pleaded in Malaysiakini’s statement of defence rather than raised during High Court submissions on the suit.

The defence of reportage is where media reporting is done neutrally, without adopting or endorsing the report, as long as both sides of the dispute have been fairly reported in a disinterested manner.

“We agree with the Court of Appeal. A journalist who relies on reportage as a defence parts company with the Reynolds defence of responsible journalism, a defence which allows him to put forward the defamatory material as true, but which the defence of reportage does not allow.

“For this reason, he cannot have it both ways. He must decide which it is to be, reportage or the Reynolds defence of responsible journalism,” Rahman said.

“In the absence of any amendment to their statement of defence, the appellants (Malaysiakini) should not have been allowed to travel outside the four corners of their pleaded defences, namely fair comment, the Reynolds defence of responsible journalism and freedom of expression,” he added.

Minority ruling: Urgency of story must be taken into account

However, a diametrically opposite view was taken by the apex court’s minority ruling today read out by Harmindar, where he said that Malaysiakini had practised responsible journalism by seeking a response from parties in the matter, including RAGM, but its representative declined to comment.

He noted that the news portal had already sought response from not only residents of Bukit Koman but also from then minister Ng Yen Yen as well as then State Local Government, Environment, and Health Committee chairperson Hoh Khai Mun.

“Considered as a whole, the only fair and reasonable conclusion is that the impugned Articles and Videos were an accurate, balanced, and neutral account of the dispute,” Harmindar said.

“Secondly, if any verification exercise is required to establish that the publisher or journalist has acted responsibly, it should not be burdensome or time-consuming such that the urgency of the story is lost.

“As news is a perishable commodity, as recognised in Reynolds, the urgency of a story is a factor to be taken into account, especially in respect of an ongoing story of public interest. It would be unreasonable to expect a newspaper to undertake a verification exercise with independent experts or engage its own experts before publishing a developing story of daily interest.

“In the present case, the whole story about the fears arising from the plaintiff’s gold mining activities was already in the public consciousness. The evidence disclosed that since 1996, there were at least 26 news articles from various news media which reported the use of cyanide by the plaintiff.

“So, to now 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.

Harmindar also said the minority decision disagreed with the Court of Appeal’s finding that Malaysiakini should have pleaded the defence of reportage separately from the Reynolds defence of responsible journalism.

He said this is because reportage is not distinct and separate from responsible journalism or qualified privilege generally.

“As a parting rejoinder, it must be said, and this is beyond dispute, that the press and the journalists play a crucial role in reporting matters of public interest and matters of serious public concern. In its 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 hold a reasonable belief that the publication is in the public interest or that the publication is a fair, accurate and impartial account of a dispute, the press and journalists are entitled to the protection of the law,” Harmindar said.

Federal Court dismisses Malaysiakini's appeal in gold mining company's defamation suit

The Star https://www.thestar.com.my/news/nation/2021/07/02/federal-court-dismisses-malaysiakini039s-appeal-in-gold-mining-company039s-defamation-suit

2 July 2021

PUTRAJAYA: Raub Australian Gold Mining Sdn Bhd (RAGM) has won at the Federal Court in an appeal over a suit related to the publication of defamatory articles and videos on its gold mining activities in Bukit Koman, Raub Pahang.

The Federal Court upheld the Court of Appeal's order that news portal Malaysiakini and three others have to pay RM200,000 in damages and a further RM200,000 in costs to the company.

The five-member Bench led by Federal Court judge Justice Vernon Ong Lam Kiat, in a 3-2 majority decision on Friday, dismissed the appeal by Mkini Dotcom Sdn Bhd, the company which operates news portal Malaysiakini, and three other former members of the editorial team.

The majority decision was read out by Federal Court judge Justice Abdul Rahman Sebli. Justices Zaleha Yusof and Hasnah Mohammed Hashim concurred with him while the minority decision came from Justices Harmindar Singh Dhaliwal and Ong.

In his judgment, Justice Abdul Rahman Sebli said the Court of Appeal was right 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 lawsuits, usually involving media organisations republishing unproven accusations of public figure, so long as the reporting is unbiased and in the public interest.

The Reynolds defence of responsible journalism requires an attempt by the media to contact the other side before publishing the article.

"A vital element of reportage is missing from the pleadings to entitle the appellants (Malaysiakini) to rely on the defence of reportage," said Justice Abdul Rahman, adding that the reports were not in neutral fashion.

Justice Abdul Rahman said the majority court decision ruled in the affirmative on a legal question that it was 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, Justice Harmindar Singh 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.

Justice Harmindar Singh said the press and journalists play a crucial role in reporting matters of public interest and matters of serious public concern, adding that in its 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 said.

RAGM filed the suit against Malaysiakini for defamation and malicious falsehood in respect of three articles and two videos published in the Malaysiakini portal in 2012 on the health concerns of Bukit Koman villagers in Raub, Pahang, 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.