INTRODUCTION

In Malaysia, the interplay between the notion of freedom of expression, the rights of the media to publish statements as well as articles at will, and the law of defamation is very much a complex one. This is particularly exacerbated in a country of diverse political views, differing social and economic backgrounds, increasing wealth gaps between the minority urban elite and the majority rural folk as well as increasing racial polarisation. In this context, the role of online news platforms or blogs seeking to provide different perspectives by reference to the daily news, political viewpoints or perceived matters of general or public interest has become increasingly prevalent – the historical reliance on receiving news or insights from traditional broadsheets no longer being the norm.

Against this backdrop, there have been significant decisions of the courts in Malaysia in so far as the law of defamation is concerned vis-à-vis, articles or statements published by online news portals or blogs relating to the defences of justification, qualified privilege generally and fair comment. In this article, the recent decision of the Federal Court of Malaysia in Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd by way of Federal Court Civil Appeal No. 02(f)-61-08/2018(W) that was delivered on 2nd July 2021 will be specifically examined (“Mkini Dotcom v RAGM”)[1].

The decision of the Federal Court in Mkini Dotcom v RAGM is instructive in that it addresses the following principal issues, namely, (i) the application of the defence of reportage, and (ii) the distinction between the said defence of reportage and the defence of responsible journalism. The ancillary issue that the decision in Mkini Dotcom v RAGM addresses is the notion of how damages are claimed in a libel action for reputational harm or loss of goodwill to a business or company, where post the filing of the writ action, the claimant is the subject of voluntary liquidation.

THE BACKGROUND

The claimant (Respondent in the proceedings before the Federal Court), Raub Australian Gold Mining Sdn Bhd (“RAGM”), is a gold mining company that mines and produces gold dore bars at its Carbon-in-Leach (“CIL”) plant. The plant is in Bukit Koman in the district of Raub, Pahang (the “Plant”). RAGM commenced its operations on or about February 2009 and has been in operations for over five and a half years.

The Plant is located approximately one (1) kilometre away and downstream from Kampung Bukit Koman. The river, Sungai Koman is located on the eastern boundary of the tenement.

Since the Plant started its operation in 2009, there had been numerous protests staged by the villagers residing near Bukit Koman in Raub, Pahang Darul Makmur. These protests organised by the Anti-Cyanide Gold mining activist group (“ACG”) (which included its principal officer bearers Mr. Wong Kin Hoong, Mr. Hue Fui How and Ms. Hue Shieh Lee) thereafter became large scale rallies in Raub. RAGM contended that it was the recipient of negative publicity arising from the acts of the ACG.

The Dispute

RAGM contended that over a period of years, in support of the ACG, Mkini Dotcom Sdn Bhd by way of its online new portal at www.malaysiakini.com (hereinafter referred to as the “Malaysiakini website”) published numerous articles that did not depict RAGM in a positive light.

In 2012, this culminated in the Defendants, namely, Mkini Dotcom Sdn Bhd and its journalists, Mr. Lee Weng Keat, Mr. Wong Teck Chi and Mr. Victor TM Tan[2] (who were the Appellants in the Federal Court), publishing the following Articles and Videos, all of which referred to RAGM on the Malaysiakini website:

RAGM took issue with the said Articles and Videos on the principal grounds that the statements contained therein were prima facie defamatory of RAGM in their plain and ordinary meaning and/or by way of innuendo.

THE HIGH COURT PROCEEDINGS

A writ action was filed before the High Court of Malaya at Kuala Lumpur on or about 3rd September 2012 by RAGM against the Defendants predicated on a cause of action in libel and for malicious falsehood. The trial before the High Court lasted eight (8) days with fifteen (15) witnesses being called.

On 23rd May 2016, Madam Justice Rosnaini Binti Saub in delivering the judgment of the High Court found the Articles and Videos to be prima facie defamatory. However, the learned High Court Judge dismissed RAGM’s claim on the basis that Defendants had successfully raised the defence of qualified privilege and reportage. In short, the High Court held, inter-alia, as follows[3]:

The High Court went on to dismiss the claim for malicious falsehood as well[4].

COURT OF APPEAL PROCEEDINGS

On 1st June 2016, RAGM filed a notice of appeal with the Court of Appeal against part of the decision of the High Court. Critically, no appeal or cross-appeal was filed by Mkini Dotcom Sdn Bhd and its journalist against the High Court’s specific finding that the Articles and Videos were prima facie defamatory of and concerning RAGM.

On 11th January 2018, RAGM’s appeal was unanimously allowed with costs by the Court of Appeal[5]. The full written grounds of the Court of Appeal are reported by way of Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 4 MLJ 209.

Summary of the Court of Appeal’s Decision:

In summary, the Court of Appeal held, inter-alia, that:

Accordingly, general damages in the sum of RM200,000.00 for loss of goodwill and vindication of reputation was awarded to RAGM[11].

FEDERAL COURT PROCEEDINGS

Dissatisfied with the decision of the Court of Appeal, Mkini Dotcom Sdn Bhd and its journalist sought leave to appeal to the Federal Court, which was granted by reference to nine (9) questions of law.

On 2nd July 2021, the Federal Court by majority (3:2) dismissed the appeal with costs and upheld the decision of the Court of Appeal.

Preliminary Issue

Before addressing the principal issues by reference to the nine (9) leave questions in the majority and minority judgments, it should be noted that Mkini Dotcom Sdn Bhd and its journalist, sought to assert before the apex court that the 1 Article and 2nd Video (and therefore by implication all the Articles and Videos) were not actionable in so far as the claims for libel were concerned, given that the Federal Court had in an earlier judgment pertaining to the same 2nd Article headlined “78pct Bukit Koman folk have ‘cyanide-related’ ailments” dated 21st June 2012, authored by Mr. Wong Teck Chi and the same 1st Video entitled “78pct Bukit Koman folk have cyanide related ailments” dated 21st June 2012 in the instant appeal, had been held to be not defamatory of RAGM in a claim instituted by RAGM against Ms. Hue Shieh Lee[12]. The judgment of the Federal Court in that action is reported by way of Raub Australian Gold Mining Sdn Bhd (in creditors’ voluntary liquidation) v Hue Shieh Lee [2019] 3 MLJ 720[13].

Justice Harminder Singh Dhaliwal in delivering the judgment of the minority (in respect of which Justice Vernon Ong Lam Kiat concurred), held that such an argument on the part of Mkini Dotcom Sdn Bhd and its journalist, could not be sustained, for the following reasons[14]:

“[121]  Now, to recall, the High Court in the present case had held that the articles and the videos in question were defamatory of the plaintiff. This finding appears in paragraph [16] of the judgment:

“[16] It is therefore my judgment that the words complained of as stated by the plaintiff in paras. 8, 11, 17, 20 and 25 of the statement of claim are capable of being defamatory of the plaintiff in their natural and ordinary meaning. I agree with the plaintiff’s learned counsel that the said articles and videos impute to the plaintiff dishonourable or discreditable conduct or motives or lack of integrity on part of the plaintiff of being unethical and greedy mining company. The plaintiff has therefore succeeded in proving, on the balance of probabilities, all the three basic elements of defamation.”

[122]  The defendants did not appeal in respect of this part of the decision. The Court of Appeal was only concerned with the defences raised by the defendants and not with the question of whether the articles and videos were defamatory. It must then follow, in my view, that the defendants had accepted the decision of the High Court in this respect and cannot now reassert the said issue in this Court.

[123]  As defamation claims are sui generis, it is up to the parties to take their own respective positions as to the conduct of the litigation even if the alleged defamatory material is the same. It cannot be said that two different Courts have arrived at two different conclusions on the same factual and legal issue as the defendants in the instant case had effectively abandoned the issue which they now wish to resurrect. Put simply, the Court is now not required to decide on the issue as, because of the defendants’ election, the issue is no longer before the Court. The position that obtains accords with the adversarial tradition that underpins litigation in the common law world. In the circumstances, the argument by the defendants in this respect, as persuasive as it seems, cannot be sustained.

[124]  It should however be clarified, lest it be misunderstood, that if the question of whether the impugned articles and videos were defamatory was a live issue, then the application of issue estoppel or estoppel per rem judicatum may be relevant against the plaintiff/respondent here. Since this Court in Hue Shih Lee had ruled that the same articles were not defamatory of the respondent here, it would have been legally untenable for this Court to now say otherwise.”

Justice Abdul Rahman Bin Sebli in delivering the judgment of the majority (in respect of which Justice Zaleha Binti Yusof and Justice Hasnah Binti Dato’ Mohammed Hashim concurred), agreed with the conclusion of the minority on this issue but only endorsed the reasoning of the minority at paragraphs 20 to 26 of the minority judgment. The reasoning of the minority at paragraph 27 of its judgment was not expressly endorsed by the majority of the Federal Court. This is evident from paragraph 4 of the majority judgment which reads as follows[15]:

“[4] My learned brother Harminder Singh Dhaliwal FCJ in his judgment has ruled against the appellants on the issue of whether the impugned 2nd Article and 1st Video were actionable in defamation. For the reasons given by His Lordship at paragraphs [20] – [26] for the judgment, I agree.”

It is telling that the majority of the Federal Court did not endorse the dicta of the minority at paragraph 27 of the minority judgment. In the view of the authors of this article this is perhaps due to the fact that the majority of the Federal Court were cognisant of the caveat imposed by the Federal Court in Raub Australian Gold Mining Sdn Bhd (in creditors’ voluntary liquidation) v Hue Shieh Lee [2019] 3 MLJ 720[16] at paragraphs 75 to 81, which reads as follows:

“Other suits against other defendants

[75]  In the course of his submissions before us, learned counsel for the appellant raised issues on other defamation suits filed by the same appellant concerning the same articles (as in the present case) against other defendants namely the MKini and FMT. The respondent in the present case was not the party in those cases.

[76]  The MKini suit was decided by another High Court after the present case was decided by the Kuala Lumpur High Court on 13 May 2015. On appeal, the Court of Appeal allowed the appeal on the present case on 13 April 2016. In the MKini suit, both the High Court and the Court of Appeal ruled that the impugned articles (the very same articles in the present case) were defamatory of the appellant. Learned counsel for the appellant submitted before us that the decision of the High Court and the Court of Appeal in the MKini suit on the determination that the articles were defamatory is binding on the Federal Court in the present case before us; as a matter of estoppel, not judicial precedent. 

[77]  In the FMT suit, there was no judicial pronouncement by the court that the words in the articles were defamatory. In that case, the defendant therein (MToday Sdn Bhd — FMT) as the publisher tendered an apology taking full responsibility for the articles.

[78]  It is noted that the respondent herein was not a party in both the MKini suit as well as the FMT suit; nor did she have a say in the apology agreed upon by the parties in the FMT suit. Each case must be dealt with and decided on its own merit after hearing all parties to the respective suits. The plaintiff in each case must be required to prove each and every one of his claims against each defendant individually, on all the relevant elements to establish defamation, ie defamatory effect of the statements, directed at the plaintiff, and publication to third party.

[79]  We cannot agree with learned counsel’s submissions that this court is bound by the decision of the High Court in the MKini suit, especially bearing in mind that in the present case before us, both the High Court and the Court Appeal have made concurrent findings of facts entirely different from the High Court’s MKini suit. Both the High Court and the Court of Appeal in the present case had ruled that both the impugned Articles and the video were not defamatory and their decisions were delivered earlier in time. In short, it must be stressed that this court is not bound to accept, nor is the respondent estopped by the finding of the High Court in the MKini case that the impugned words are defamatory as suggested by the appellant’s counsel.

[80]  It must also be noted that defamation claims are ‘sui generis’, in that multiple suits are permitted against different defendants in relation to the same publication; and therefore, the defendant in the present case, cannot be estopped by a determination in any other suit to which he was not a party. The ruling made by the High Court in the MKini suit, where the respondent herein, was not a party thereto, will not bind the respondent herein, who in a different proceeding may secure a different result based on the facts and circumstances of her own defence. It would be a breach of natural justice rule and an abuse of the court’s process for a plaintiff (the appellant) to be permitted to file multiple suits against different defendants in defamation actions, but to be relieved of the burden of proof merely because one suit is resolved in its favour. In dealing with the present appeal before us, we only need to examine the decisions of the Court of Appeal and the High Court in this case with respect to the facts and circumstances of its own.

[81]  We agree with learned counsel for the respondent that the meanings ascribed to those words in the impugned articles in the MKini suit by the appellant and pleaded against MKini were different from those pleaded against the respondent in this case. As such, the courts in this case were required to look at the impugned words from an entirely different perspective as compared to the court in the MKini case."

Minority Judgment of the Federal Court[17]

In this article, due regard is given to the principal aspects of the minority judgment before considering the majority of the Federal Court.

In addressing the law of reportage and Reynold’s privilege in the context of the factual matrix of the appeal, Justice Harminder Singh Dhaliwal (with whom Justice Vernon Ong Lam Kiat concurred) held, inter-alia, as follows[18]:

In addressing the question of whether Mkini Dotcom Sdn Bhd and its journalists had made out a case of reportage or Reynold’s privilege, Justice Harminder Singh Dhaliwal, on behalf of the minority, held, inter-alia, as follows[25]:

The minority having decided that the appeal ought to be allowed was of the view that Leave  Question 8 and Leave Question 9 pertaining to the issues of damages, therefore need not be answered as the said questions of law had become redundant.

Majority Judgement of the Federal Court[26]

Justice Abdul Rahman Bin Sebli in delivering the judgment of the majority (in respect of which Justice Zaleha Binti Yusof and Justice Hasnah Binti Dato’ Mohammed Hashim concurred) in addressing the law of reportage and the distinction between Reynold’s privilege by reference to the notion of responsible journalism held, inter-alia, that[27]:

The majority of the Federal Court then went on further to state that the defence of reportage must be expressly pleaded[33]. In so doing, the Federal Court held that the High Court was wrong to accept the unpleaded defence of reportage which in any event was only raised by Mkini Dotcom Sdn Bhd and its journalist for the first time at the closing submissions stage. In this regard, the majority of the Federal Court followed its earlier decision in Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor[34] which settles the law that one is bound by their pleadings. The majority of the Federal Court made the following specific findings which is instructive:

“[31]  The defence of reportage is conspicuous in its absence. Not a word of the defence was mentioned in the statement of defence. Nor can the defence be implied from the pleadings. Yet it was relied heavily on by the appellants in their closing submissions at the trial. What the appellants did was to ride on their pleaded Reynolds defence of responsible journalism to pursue their unpleaded defence of reportage.

[35]  The Reynolds defence of responsible journalism or qualified privilege was pleaded in the alternative in paragraphs 33 and 35 of the statement of defence. Although pleaded in the alternative, the defence formed the bedrock of the appellants’ defence in answer to the defamation action. It was not, it will be noted, pleaded in the alternative to the defence of reportage, which was not part of the pleaded defence, not that the defences can be pleaded in the alternative.

[36]  The appellants cited the case of Re Vandervell’s Trusts (No.2) (1974) 1 Ch 269 to substantiate their argument that their failure to plead reportage is permissible in law. The following dicta by Lord Denning was quoted:

“Mr. Balcombe for the executors stressed that the points taken by Mr. Mills were not covered by the pleadings. He said time and again: “This way of putting the case was not pleaded.” “No such trust was pleaded.” And so forth. The more he argued, the more technical he became. I began to think we were back in the old days before the Common Law Procedure Acts 1852 and 1854, when pleadings had to state the legal result; and a case could be lost by the omission of a single averment: see Bullen and Leake’s Precedents and Pleadings, 3rd ed. (1868), p. 147. All that has been swept away. It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He can present, in argument, any legal consequence of which the facts permit. The pleadings in this case contained all the material facts. It does appear that Mr. Mills put the case before us differently from the way in which it was put before the judge: but this did not entail any difference in the facts, only a difference in stating the legal consequences. So, it was quite open to him.”

[37]  But this is to be distinguished from the present case which is premised on an action in defamation where it was imperative for the appellants to sufficiently plead their defence(s). Further, the appellants only quoted the judgment of Lord Denning and omitted to highlight the dicta of Lawton LJ at page 324 which reads:

‘As to the pleading point, it is pertinent to bear in mind what, under the Rules of the Supreme Court, should be put in pleadings. Ord. 18, r. 7, provides as follows:

‘Subject to the provisions of this rule, and rules 7A, 10, 11 and 12” (none of which are relevant in this case), every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, … and the statement must be as brief as the nature of the case admits.

It follows, so it seems to me, that the question for decision in the case is whether the material facts have been set out in the pleadings, not whether Mr. Mills made submissions before this court as to legal consequences which had not been set out. Much the same kind of point was taken before this court in Lever Brothers Ltd. v. Bell [1931] 1 K.B. 557. When dealing with it Scrutton L.J. said, at pp. 582-583:

‘In my opinion the practice of the courts has been to consider and deal with the legal result of pleaded facts, though the particular legal result alleged is not stated in the pleadings, except in cases where to ascertain the validity of the legal result claimed would require the investigation of new and disputed facts which have not been investigation at the trial.”

These comments are apt to fit this case, which is not one within the exception. In my judgment the pleadings did set out all the material facts sufficient to justify the legal results which Lord Denning M.R. has adjudged follow and with which I agree.’

(emphasis added)

[38]  It is thus clear that in that case the material facts were set out in the pleadings. In the context of the present case, what the appellants needed to do was to set out all the material facts relating to the defence of reportage, which they did not. Obviously the appellants’ reliance on Re Vandervell’s Trust was to support their argument that only material facts need to be pleaded. The argument must fall because in this case the material facts relating to the defence of reportage were not pleaded at all.

…

…”

Having addressed its mind to the distinction between the defences of reportage and responsible journalism as well as the proper approach to pleading a defence of reportage, the majority of the Federal Court reviewed the judicial approach of the High Court. In so doing, the Federal Court held, inter-alia, that[35]:

The majority of the Federal Court went on further to judicially appreciate if the requirements of the defence of responsible journalism had in fact been met by Mkini Dotcom Sdn Bhd and its journalist. In this specific regard, the majority held, inter-alia, that[36]:

“[80]  The second limb of the Reynolds defence of responsible journalism or qualified privilege requires the appellants to satisfy the court that the steps to gather, verify and publish the information were responsible and fair. However, from the evidence of DW1, the Editor-in-Chief of the 1st appellant, it is clear that the appellants had failed to take steps, let alone reasonable steps, to verify the contents of the articles and videos, as apparent from the following:

(a)        No attempt was made to independently verify if the information in the articles and videos were true;

(b)        No attempt was made to contact independent bodies such as the Department of Environment, the Department of Minerals and Geoscience or the Ministry of Health prior to publication of the articles and videos;

(c)      As Editor-in-Chief, DW1 did not even read the articles and watched the videos before they were published;

(d)        No attempt was made to view any primary document before publishing the articles and videos;

(e)        At no time did the 1st appellant have sight of the so-called survey prepared by the BCAC;

(f)         No attempt was made to retract any of the articles and videos despite apologies being issued by both Wong Kin Hoong and Hue Fui How; and

(g)        The appellants were selective in the contents of the articles and videos and as a result did not write balanced articles and gave prominence to the views of the BCAC only.

[81]  DW1 had also admitted in cross-examination to the following: 

(a)        his reporting on the respondent started since 2008 right up to 2012, and further agreed that the 1st appellant had ample time of 5 years to check whether the sources of the information were correct (Therefore the adage that news is a perishable commodity does not assist the appellants).

(b)        he absolutely had no concrete scientific evidence to say that cyanide pollution was the cause of the ill health of the villagers in respect of the headline of the 2nd article.

(c)        there was absolutely no basis for what was stated in paragraphs 1 and 2 of the articles in so far as scientific and technical evidence is concerned.

(d)        he did not at any time look at the so-called survey prepared by the BCAC.

(e)        neither he nor DW2 verified whether the unusual yellow dots emanated from the respondent’s mining activities.

(f)         that he and DW2 did not obtain the readings from the so- called monitoring devices alleged by Mr Wong King Hoong before publishing the 1st article although it was important to ascertain the readings on the alleged monitoring device.

(g)        that in the articles in 2007-2013, he espoused essentially the views of the BCAC in particular.

[82]  DW2 on his part had admitted to the following in cross- examination:

(a)        by writing the 1st paragraph of the 1st article, he merely accepted the unverified words of Mr Wong King Hoong, the blogs and the media reports.

(b)        he did not ascertain if the facts contained in paragraph 5 of the 1st article that birds, lizards that have been found dead that occurred due to the commencement of the respondent’s mining activities.

(c)        he had no evidence of a scientific or technical nature that the deaths of the birds, lizards was due to the respondent’s gold mining activities.

(d)        he did not even visit Bukit Koman to ascertain the fact that there were birds, lizards which were found dead.

(e)        he was told by Mr Wong Kim Hoong that the yellow spots came from the mining operations yet he re-published what Mr Wong King Hoong said to him without verifying if what Mr Wong King Hoong told him was based on facts which were true.

(f)         he was not in a position to contradict the statement of PW2, an expert metallurgist that the presence of the yellow powdery spots and dots measuring up to 8mm and the unbearable stench could not be scientifically attributed to cyanide or its degradation by products due to extremely low concentration of HCN gas.

(g)        he was not in a position to tell the court what was the technical, medical, scientific evidence that he relied on to say that the unusual yellow dots were responsible for the skin, eyes, respiratory illness of the residents of Bukit Koman.

[83]  On the proved facts therefore, the learned trial judge was clearly wrong in finding as a matter of law that the articles and videos were published on an occasion of qualified privilege. The appellants’ failed attempts to get clarification from a representative of the respondent in connection with the articles and videos is 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.

[84]  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 although not in every detail.

[85]  In any event, since the allegations in the articles and videos had been proved to be untruths and were defamatory of the respondent, the fact that the respondent declined comment on the stories is of no consequence. To reiterate what Lord Hobhouse said in Reynolds, no public interest is served by communicating and receiving untruths. There were many aspects of the articles and videos that were verifiable and which needed independent verification but which the appellants did not bother to check for truth and accuracy.

[86]  The learned trial judge’s finding was therefore plainly wrong and the Court of Appeal was justified in interfering with the finding in order to prevent a miscarriage of justice. The Court of Appeal had given sound reasons for disagreeing with the decision of the High Court in relation to the first article, which reasoning applies equally well, in my opinion, to the second and third articles…”

Having found that the decision of the Court of Appeal ought to be upheld on the issue of liability, the majority of the Federal Court considered whether RAGM given its present insolvency was entitled to damages. To this end, Justice Abdul Rahman Bin Sebli on behalf of the majority held, inter-alia, that[37]

Summary of the Federal Court’s Decision

Ultimately, the Federal Court by majority in dismissing the appeal expressly answered the leave questions in the following manner:

COMMENTARY[40]

The majority decision of the Federal Court is significant in that for the first time the following issues have been addressed by the apex court in Malaysia:

The distinction between the defence of reportage and the defence of responsible journalism

The majority judgment of the Federal Court by referring to the decision in Roberts and another v Gable and others[41] in particular, is emphatic in its judicial pronouncement that the defence of reportage will not apply where the journalist (i) adopts the truth of the statements made and makes it his/her own, and (ii) fails to report the story in a fair, disinterested and neutral way.  The approach of the majority of the Federal Court is consistent with the position in England.

In this regard, the majority of the Federal Court went on further to hold that defence of reportage is at odds with the Reynold’s defence of responsible journalism, such that a journalist cannot have it both way by reference to the dicta of Sedley J in Charman v Orion Publishing Group Ltd and others[42]. In this respect, the two defences were held to be mutually exclusive.

The minority judgment of the Federal Court also refers to the very same decisions cited above, save that the minority takes the view that both the Court of Appeal and by implication the majority of the Federal Court appear to have “misapprehended”[43] the remarks of Sedley LJ in Charman v Orion Publishing Group Ltd and others[44].

In the view of the authors, the majority judgment of the Federal Court appears to have properly taken cognisance of the analytical and doctrinal differences between the two defences. From an analysis of the case law, the defence of reportage and Reynolds privilege involve different analytical processes. This is evident when one considers the following authorities:

“[62] The fact that the defamatory statement is not established at the trial to have been true is not relevant to the Reynolds defence. It is a neutral circumstance. The elements of that defence are the public interest of the material and the conduct of the journalists at the time. In most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true but there are cases (‘reportage’) in which the public interest lies simply in the fact that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth. In either case, the defence is not affected by the newspaper’s inability to prove the truth of the statement at the trial.”

“[91] The reportage doctrine developed in Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634, [2002] EMLR 215 cannot logically be confined to the reporting of reciprocal allegations. A unilateral libel, reported disinterestedly, will be equally protected. Although no reference was made in the case to the decision of the Second Circuit Court of Appeals in Edwards v National Audubon Society Inc (1977) 556 F 2nd 113, Al-Fagih’s case reflects this now classic limb of First Amendment jurisprudence. But the present case bears no substantive resemblance to either of those cases, nor to the case recently decided by this court of Roberts v Gable [2007] EWCA Civ 721, (2007) 151 Sol Jo LB 988. These were all cases of a self-contained account of a dispute, libellous in its content but reported without adoption or more than marginal embellishment. It is the very dependence of a reportage defence on the bald retailing of libels which makes it forensically problematical to fall back upon an alternative defence of responsible journalism. Pleaders may need to decide which it is to be.”

Therefore as a matter of process, the Reynolds privilege defence and the reportage defence are to be treated as distinct defences, with each involving a separate and distinct analysis. It may be surmised that there is a different analysis involved for each defence, by reference to the following:

The analytical distinction lies in the fact that the protection afforded by the defence of Reynolds privilege arises from the circumstances and occasion leading up to the publication of a news article; whereas the protection accorded by the defence of reportage is based on the publication of the article itself.

As a matter of doctrine, reportage is unable to be reconciled as a particular application or species of the Reynolds Privilege. This is because reportage and Reynolds Privilege afford protection to a defendant for distinct reasons, in the sense that the public interest as it relates to published allegations is given a very different focus in each defence.

For Reynolds Privilege, the “responsible journalism” standard is focused on ensuring that journalists take reasonable steps in relation to the truth of any allegations which they report, as explained by Lord Bingham in Jameel and another v Wall Street Journal Europe Sprl[47]:

“[32] … the rationale of [the responsible journalism] test is, as I understand, that there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify… [T]he publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication.”

Conversely, the doctrine of reportage is not concerned with the truth of what the allegations say about the Respondent, but is instead focused on the much narrower public interest in knowing that the allegations have been made[48]:

“[62] …there are cases (“reportage”) in which the public interest lies simply in the fact that the statement was made.”

Therefore the doctrine of reportage pursues two goals which are diametrically different from the goals of a Reynolds defence: (i) public interest in the attributed speaker; and (ii) public interest in the nature of the dispute.

In the light of the very different focus pursued by each defence, it is perhaps contradictory that a defence which is unconcerned with the truth could be seen as a species of Reynolds privilege, which is entirely concerned with the steps taken by a journalist regarding the truth of the allegations reported. Such a form of journalism is a significant departure from the focus of Reynolds’ “responsible journalism”, which required adherence to a process of verification by reporters. Indeed, Lord Hobhouse’s dicta in Reynolds v Times Newspaper Ltd and others[49] appears to lend credence to the rationale:

“No public interest is served by publishing or communicating misinformation. The working of a democratic society depends on the members of that society being informed not misinformed. Misleading people and the purveying as facts statements which are not true is destructive of the democratic society and should form no part of such a society. There is no duty to publish what is not true: there is no interest in being misinformed.”

In summation, the distinction between the Reynolds privilege defence and reportage defence warrant a separate pleading and proof of each defence:

The two defences may rightly be said to be mutually exclusive.

If one were to objectively examine the evidence at trial by reference to the witness statements of the Editor-in-chief of Mkini Dotcom Sdn Bhd and its journalist, the evidence under cross-examination and the contemporaneous documents, it would be evident that the conduct of the entire trial on the part of Mkini Dotcom Sdn Bhd and its journalist was premised on a defence of responsible journalism.

This is particularly telling when one were to, for instance, consider the cross-examination at the trial before the High Court of Mr. Steven Gan, Editor-in-Chief of Mkini Dotcom Sdn Bhd (“DW-1”), where the following admissions and/or concessions were made:

Admissions of a similar nature were also obtained from the other journalists by way of cross-examination at trial.

As such, one can surmise that the foundation or pillar in support of the defence of reportage was not laid from an analytical and/or doctrinal perspective at trial by Mkini Dotcom Sdn Bhd and its journalist, whilst the premise for a successful defence of “responsible journalism” was simply not met on the facts and given the specific admissions made under cross-examination by Mkini Dotcom Sdn Bhd and its journalists.

Given the above, the conclusion of minority of the Federal Court that both the defence of reportage and responsible journalism had been properly made out is to be viewed with caution. Support for this is to be found if one were to compare the judicial analysis of the evidence undertaken in the majority judgment of the Federal Court at paragraphs 34 to 38, paragraphs 49 to 73 and paragraphs  77 to 89 with that of the minority judgment of the Federal Court at paragraphs 79 to 101.

The need to expressly plead the defence of reportage

On the requirement to have to expressly plead the defence of reportage, the majority of the Federal Court by reference to an earlier decision of the Federal Court in Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor[50] was of the view that parties are bound by their pleadings which applies equally to pleading a cause of action in a claim or a defence.  In fact, critically, the majority of the Federal Court went on to specifically state the following:

“[40]  This is not to say that the appellants could not avail themselves of the defence of reportage. They could, but they must plead it: see also Lord McAlpine v Bercow [2013] EWHC 1342 (QB); [2013] All ER (D) 301 (May) where Tugendhat J said:

“[89] If the Defendant wished to avail herself of a public interest defence, such as Reynolds privilege or reportage, she would have had to plead it.

She has not done so.”

[41]  No authority was cited by the appellants to support their contention that the defence of reportage is covered by the Reynolds defence of responsible journalism and therefore need not be pleaded. What is clear from the authorities cited by the appellants is that reportage is a special kind of responsible journalism but with ‘distinctive features’ of its own: see for example Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634; [2002] EMLR 215. In Gable, Ward LJ said that ‘If the case for a generic qualified privilege for political speech had to be rejected, so too the case for a generic qualified privilege for reportage must be dismissed’.”

To this end, the majority of the Federal Court held that the failure to expressly plead a defence of reportage was fatal.

The minority judgement of the Federal Court in contrast held that the general plea of qualified privilege as well as the general references to “responsible journalism”, “public interest” and “duty to publish the ongoing story” were sufficient such that RAGM “properly advised by its legal advisors, could not have been left in any doubt that the Reynold’s defence of reportage was being pleaded especially when the terms ‘public interest privilege’ or ‘responsible journalism’ are used…”.[51]

Added to this, the attempt by the minority of the Federal Court to distinguish the decision of the Court of Appeal in Harry Isaacs & Ors v Berita Harian Sdn Bhd & Ors[52] is difficult to reconcile. In that case, the plea of reportage was not reflected in the defence filed before the High Court very much like in this instant appeal before the Federal Court. There was only a general plea of qualified privilege[53]. The relevant dicta of the Court of Appeal in Harry Isaacs & Ors v Berita Harian Sdn Bhd & Ors[54], is to be found in paragraph 15 of the judgment, which provides as follows:

“[15]  With respect, in our judgment, the aforesaid pronouncements of Ward LJ are not an authority for the proposition contended by counsel for the respondents. We opine to this effect because the pronouncements of Ward LJ has its origins in the pronouncements of Lord Nicholls in the celebrated House of Lord's case of Reynolds v Times Newspapers Ltd and others where Lord Nicholls cited ten grounds which had to be taken into consideration when considering the defence of 'reportage', (see p 626 of the reported judgment of the court). That Ward LJ did not intend to depart from the pronouncements of Lord Nicholls is evident from a careful examination of the passage concluding with the words 'Consequently responsible journalism did not require verification of the truth' (cited in para 14 above).

In other words, on the particular facts of this case, Ward LJ concluded that the ten grounds pronounced by Lord Nicholls had been satisfied notwithstanding that no verification had taken place. In this respect, it must be borne in mind that applying the criteria pronounced by Lord Nicholls, verification may not be necessary in cases of urgency and/or when no part of the article is adopted by the author and publisher of the article. On the particular facts of this case, with respect, we do not see the relevance of this submission of learned counsel for the respondents since the defence of 'reportage' was neither pleaded nor relied upon by the respondents. Furthermore, it was the finding of the learned trial judge that the defamatory article included allegation of facts without any source and this, in our judgment, amounted to an adoption of those facts by the respondents, a ground for denying the defence of 'reportage'.”

It appears that the minority in the Federal Court may not have properly appreciated the reasoning in Harry Isaacs & Ors v Berita Harian Sdn Bhd & Ors[55].

In the view of the authors, the decision of the majority of the Federal Court correctly sets out the law.  Regard must be had to the manner in which Mkini Dotcom Sdn Bhd and its journalists, pleaded their defence of qualified privilege. Paragraphs 33 to 35 of the Amended Defence reads as follows:

“F. Qualified Privilege

33. Further and/or in the alternative, the Defendants contend that the impugned words and depictions in each of the Articles and Videos were published on occasion of qualified privilege. The Defendants contend that they honestly and reasonably believed the statements reported and published the impugned Articles and Videos to be true.

Particulars

33.1     The Defendants repeat paragraphs 2.1 to 33 above including sub-paragraphs thereto.

33.2    The Articles and Videos published by the Defendants concern aspects of public interest as explained above.

33.3    The Defendants were under a duty to publish the Articles and Videos to its readership and subscribers which had a corresponding interest in receiving the same.

34. Further to the above, for the 3rd Article and 2nd Video, at no time did the Plaintiff seek to make any press statements through the Defendants. The Defendants contend that the Plaintiff[s] would have been afforded an opportunity to have their version of events published. The 1st and 4th Defendants had further sought the comment of one of the Plaintiff’s directors, Andrew Kam, to no avail.

35. Further and/or in the alternative, the Defendants contend that the publication of the Articles and Videos was in furtherance of responsible journalism on the part of the Defendants. In this regard, the subject of the Articles and the Videos were and still are matters of public interest which the Defendants were under a duty to publish.”

Arising from the above, the following is to be noted:

Simply put, the majority of the Federal Court properly appreciated (i) the law, (ii) the pleadings, (iii) the conduct of Mkini Dotcom Sdn Bhd and its journalists, and (iv) the evidence in this instant dispute. In contrast, the reasoning of the minority of the Federal Court in support of its conclusion that the defence of reportage is properly pleaded is difficult to appreciate. The minority judgment appears to have failed to properly appreciate the critical factors listed above and in the view of the authors seek to place an unfair burden on RAGM in having to “guess” or “predict” the pleaded defence of Mkini Dotcom Sdn Bhd and its journalist, given (i) the wording of paragraphs 33 to 36 of the Amended Defence, and (ii) that the arguments relating to the alleged defence of reportage were only raised for the very first time in closing written submissions after the conclusion of the evidential aspects of the trial before the High Court.

In the context of an adversarial legal system, the reasoning of the minority of the Federal Court at paragraphs 66 to 68 of its judgment is of concern. In an adversarial common law system, the onus is not on the opposing party to address arguments or defences that a party has elected not to plead. This notion or practice to adopt the words of the minority judgment of the Federal Court  is a “position that obtains accords with the adversarial tradition that underpins litigation in the common law world.”[56] In the respectful view of the authors the minority of the Federal Court’s reasoning in finding that the failure to expressly plead the defence of reportage is plainly wrong and at odds with established law[57].

The right of a company in liquidation to claim damages

In the view of the authors, the judicial pronouncement of the majority of the Federal Court at is not uncontroversial[58]. The majority judgment of the Federal Court followed established jurisprudence in that it recognised that the fact that:

In this regard, the majority of the Federal Court corresponds with the decisions in Harry Isaacs & Ors v Berita Harian Sdn Bhd[59] [2012] 4 MLJ,  South Hetton Coal Co Ltd v North-Eastern News Association Ltd[60] [1894] 1 QB and  Jameel and another v Wall Street Journal Europe Sprl[61].

CONCLUSION

In conclusion, in the context of defamation claims, the significance of the decision of the Federal Court as a whole, in Mkini Dotcom v RAGM is threefold:

In the view of the authors, Baroness Hale of Richmond in Jameel and another v Wall Street Journal Europe Sprl[62] stated it best, when Her Ladyship held that:

“[147] This does not mean a free-for-all to publish without being damned. The public only have a right to be told if two conditions are fulfilled. First, there must [be] a real public interest in communicating and receiving the information. This is, as we all know, very different from saying that it is information which interests the public—the most vapid tittle-tattle about the activities of footballers’ wives and girlfriends interests large sections of the public but no-one could claim any real public interest in our being told all about it. It is also different from the test suggested by Mr Robertson QC, on behalf of the Wall Street Journal Europe, of whether the information is ‘newsworthy’. That is too subjective a test, based on the target audience, inclinations and interests of the particular publication. There must be some real public interest in having this information in the public domain. But this is less than a test that the public ‘need to know’, which would be far too limited.

…

…

[149] Secondly, the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and sources of the information. But one would normally expect that the source or sources were ones which the publisher had good reason to think reliable, that the publisher himself believed the information to be true, and that he had done what he could to check it. We are frequently told that ‘fact checking’ has gone out of fashion with the media. But a publisher who is to avoid the risk of liability if the information cannot later be proved to be true would be well advised to do it. Part of this is, of course, taking reasonable steps to contact the people named for their comments. The requirements in ‘reportage’ cases, where the publisher is simply reporting what others have said, may be rather different, but if the publisher does not himself believe the information to be true, he would be well advised to make this clear. In any case, the tone in which the information is conveyed will be relevant to whether or not the publisher has behaved responsibly in passing it on.”

Ultimately, it is imperative that a balanced and objective approach to the publication of news, be it online or in the broadsheets, is adopted for the right of freedom of expression as truly envisaged under Article 10 of the Malaysian Federal Constitution to be properly preserved for all.

[1] At the outset, disclosure is made that Tan Sri Dato’ Cecil Abraham, Dato’ Sunil Abraham, Ms. Noor Muzalifah Binti Shabudin and Ms. Anne Sangeetha Sebastian appeared as counsel for the successful party, Raub Australian Gold Mining Sdn Bhd.

[2] Mkini Dotcom Sdn Bhd, Mr. Lee Weng Keat, Mr. Wong Teck Chi and Mr. Victor TM Tan may also be referred to collectively as the “Defendants” where appropriate.

[3] [2016] 12 MLJ 476 at pg. 493 to 494.

[4] [2016] 12 MLJ 476 at pg. 496.

[5] The Court of Appeal judges that deliberated on the appeal were Justice Abang Iskandar Bin Abang Hashim (now Chief Judge of Sabah & Sarawak), Justice Mary Lim Thiam Suan (as she then was) and Justice Suraya Binti Othman. The judgment of the Court of Appeal was delivered by Justice Suraya Binti Othman.

[6] [2018] 4 MLJ 209 at pg. 238 to 239 at paragraphs  56 to 63.

[7] [2018] 4 MLJ 209 at pg. 230 to 231 paragraphs 37 to 28.

[8] [2018] 4 MLJ 209 at pg. 231 to 235 at paragraphs 41 to 47.

[9] [2018] 4 MLJ 209 at pg. 239 to 241 at paragraphs 64 to 69.

[10] [2018] 4 MLJ 209 at pg. 241 to 243 at paragraphs 74 to 76.

[11]  [2018] 4 MLJ 209 at pg. 244 to 245 at paragraphs 81 to 86.

[12] Ms. Hue Shieh Lee was the Vice President of the ACG.

[13] We wish to disclose that our Tan Sri Dato’ Cecil Abraham and Dato’ Sunil Abraham appeared for RAGM in the appeal before the Federal Court.

[14] [2021] 5 MLJ 79 at pg. 145 to 146.

[15] [2021 5 MLJ 79 at pg. 97.

[16] We wish to disclose that our Tan Sri Dato’ Cecil Abraham and Dato’ Sunil Abraham appeared for RAGM in the appeal as well as in the related FMT Suit.

[17] [2021] 5 MLJ 79 at pg. 135 to 168.

[18] [2021] 5 MLJ 79 at pg. 154 to 158 at paragraphs 153 to 164.

[19] [2012] 4 MLJ 191.

[20] [2008] 1 All ER 750.

[21] [2008] 1 All ER 750.

[22] [2017] 6 MLJ 133.

[23] [1974] EWCA Civ 7.

[24] [2012] 4 MLJ 191.

[25] [2021] 5 MLJ 79 at pg. 162 to 167 at paragraphs 177 to 201.

[26] [2021] 5 MLJ 79 at pg. 96 to 135.

[27] [2021] 5 MLJ 79 at pg. 100 to 105 at paragraphs 11 to 27.

[28] [2006] 4 All ER 1279.

[29] [2008] 2 WLR 129.

[30] [2008] 1 All ER 750.

[31] [2012] 2 WLR 760.

[32] [2008] 1 All ER 750.

[33] [2021] 5 MLJ 79 at pg. 105 to 112 at paragraphs 28 to 45.

[34] [2015] 6 MLJ 449.

[35] [2021] 5 MLJ 79 at pg 121 to 123 at paragraphs 55 to 61.

[36] [2021] 5 MLJ 79 at pg. 129 to 131.

[37] [2021] 5 MLJ 79 at pg. 132 to 134.

[38] [2006] 4 All ER 1279 at paragraphs 119 to 122.

[39] [1894] 1 QB 133.

[40] The authors of this article have not commented on the passing remarks of the minority of the Federal Court on the application of Section 4 of the Defamation Act 2013 in the United Kingdom in so far as the Reynold’s defence and the notion of having to act responsibly on the part of a journalist is concerned, in Malaysia, as this was not an issue raised by the parties to the appeal or in respect of which submissions were specifically sought by the Federal Court.

[41] [2008] 2 WLR 129.

[42] [2008] 1 All ER 750.

[43] See paragraph 63 of the minority judgment of the Federal Court.

[44] [2008] 1 All ER 750.

[45] [2006] 4 All ER 1279.

[46] [2008] 2 WLR 129.

[47] [2006] 4 All ER 1279.

[48] Jameel and another v Wall Street Journal Europe Sprl [2006] 4 All ER 1279.

[49] [2001] 2 AC 127.

[50] [2015] 6 MLJ 449.

[51] See paragraph 66 of the minority judgment of the Federal Court.

[52] [2012] 4 MLJ 191.

[53] [2012] 4 MLJ 191 at pg. 199 at paragraph 6.

[54] [2012] 4 MLJ 191 at pg. 202 to 203.

[55] [2012] 4 MLJ 191 at pg. 202 to 203.

[56] See paragraph 26 of the minority judgment of the Federal Court.

[57] See the decisions of the Federal Court in Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 6 MLJ 449; RHB Bank Bhd v Kwan Chew Holdings [2010] 1 CLJ 665; Tan Ah Tong v Parveen Kaur [2011] 5 MLJ 428; Dato Tan Chin Woh v Dato Yalumallai v Muthusamy [2016] 8 CLJ 293.

[58] See paragraphs 93 to 95 of the majority judgment of the Federal Court.

[59] [2012] 4 MLJ 191.

[60] [1894] 1 QB 133 at pg. 145.

[61] [2006] 4 All ER 1279 at paragraphs 119 to 122.

[62] [2006] 4 All ER 1279 at pg. 1321 to 1322.