Federal Court orders Mkini to pay RM550k in mining company defamation suit

Editor's Note: We take note of the comments by readers, urging Malaysiakini to accept donations in response to the judgment. We thank our readers for their generosity and support. We would not be able to publish without our subscribers. Nevertheless, we will maintain our decision, as we believe that the most important issue is to ensure all of us get through this pandemic.

For those who wish to donate, we would like to appeal to you to channel the donation to the families who are struggling due to the pandemic. They need more help than Malaysiakini.

Become a subscriber to support Malaysiakini. Existing subscribers can also extend their subscriptions or subscribe as a gift to your friends and family.

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The Federal Court has dismissed Malaysiakini's appeal against a lower court decision that ruled in favour of Raub Australian Gold Mining's (RAGM) defamation suit.

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.

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Related report: Majority and minority judgments in Mkini's RAGM defamation case

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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.

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Become a subscriber to support Malaysiakini. Existing subscribers can also extend their subscriptions or subscribe as a gift to your friends and family.

For those who wish to donate, Malaysiakini would like to express our gratitude for your support. However, we would like to appeal to you to channel the donation to the families who are struggling because of the pandemic. They need more help than Malaysiakini.

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Three years ago, Malaysiakini raised RM350,000 to cover the damages and costs awarded by the Court of Appeal.

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 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.