The plaintiff, Raub Australian Gold Mining Sdn Bhd (“Raub”), was a company involved in gold mining. The 1st defendant, Mkini Dotcom Sdn Bhd (collectively with the 2nd, 3rd and 4th defendants is referred to as “Mkini” where applicable) owns and operates the online news portal known as Malaysiakini. The 2nd, 3rd and 4th defendants were the assistant news editor, senior journalist and intern of Malaysiakini respectively.
Raub brought the suit against Mkini for defamation and malicious falsehood in respect of three articles and two videos published by Mkini on the Malaysiakini portal in essence alleging that Raub had used cyanide in its gold mining activities which had caused serious illness to humans and death of wildlife and vegetation as well as environmental pollution.
Mkini defended the suit by relying on the defences of qualified privilege (in that they had exercised responsible journalism) and fair comment. Upon the conclusion of the trial, despite not having pleaded the defence of reportage in their defence, Mkini asserted in their submissions that they had exercised responsible journalism and/or were able to rely on the defence of reportage.
Findings of the High Court1
The High Court dismissed both Raub’s claim for defamation and its claim for malicious falsehood, and held that although the words complained of in the articles were defamatory, Mkini had successfully raised the defence of qualified privilege which encompassed both the Reynolds defence of qualified privilege (that is “responsible journalism”), whereby Mkini was protected from being held liable for defamation as they had exercised responsible journalism in reporting on matters of public concern and the defence of reportage (that is “neutral reportage”), whereby Mkini was protected from being held liable for defamation as they had reported neutrally, without adopting or endorsing the matters reported on.
Findings of the Court of Appeal2
Raub appealed to the Court of Appeal in respect of the High Court’s dismissal of its claims for defamation and malicious falsehood.
The Court of Appeal allowed Raub’s claim for defamation and awarded Raub the sum of RM200,000 in general damages, thereby setting aside that part of the High Court judgment but affirmed the dismissal by the High Court of the claim for malicious falsehood.
The Court of Appeal observed as follows:
Findings of the Federal Court3
Mkini appealed to the Federal Court on the application of the defence of reportage in the context of qualified privilege and the Reynolds defence of responsible journalism.
It is worthwhile to note that in the dissenting judgment, two out of the five judges sitting for the appeal were of the view that the defence of reportage is not a distinct and separate defence from qualified privilege, and on that basis a defendant publisher may attempt to rely on both defences.
The Federal Court decision clarifies that the current position of the law is that the defence of reportage is a separate defence from qualified privilege, and that the two defences are separate and irreconcilable.
A defendant publisher must choose which defence it wishes to rely on, and the two cannot be pleaded in the alternative, as qualified privilege allows the publisher to portray the defamatory material as being true, while reportage does not.
It must, however, be noted that the way the courts will interpret this decision remains to be seen, particularly considering the minority dissenting judgment.
YAP JUN CHENG
DISPUTE RESOLUTION PRACTICE GROUP
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1  12 MLJ 476.
2  4 MLJ 209.
3  5 MLJ 79.