On 2 July 2021, the Federal Court upheld a decision holding news portal Malaysiakini liable for defamation in a 2012 suit filed by the Raub Australian Gold Mining (RAGB) company. The suit related to three articles and two videos published by Malaysiakini, setting out Bukit Koman villagers’ concerns regarding RAGB’s use of cyanide for gold-mining and its alleged detrimental effect to their health and surrounding environment.
The Federal Court’s majority decision in holding Malaysiakini liable raised some eyebrows, as its judgment relied in part on a technical point regarding pleadings, which are written statements containing the plaintiff’s case and the defendant’s response. The Federal Court also added a RM200,000 costs bill on top of the RM350,000 in costs and damages already awarded by the Court of Appeal, bringing the total amount payable by Malaysiakini to a hefty RM550,000.
How do we make sense of this judgment and how will it impact the media and its role in reporting on matters of public interest in Malaysia? And what reforms are needed in defamation law that would preserve and protect this important role of the media?
Malaysiakini initially emerged victorious in 2016 against RAGB in the High Court, where the suit was filed. The High Court upheld Malaysiakini’s defence of qualified privilege. This meant that if Malaysiakini could show that they had a duty to impart information on a matter of public interest, they would not be liable for defamation. This applies even if the information turned out in hindsight to be untrue1. This privilege however, is subject to the fulfilment of certain criteria such as there being no malice on the publisher’s part, hence the term “qualified” privilege.
In dismissing RAGB’s suit, the High Court allowed Malaysiakini’s reliance on the Reynolds defence, a form of qualified privilege. To succeed in this defence2, the publisher has to demonstrate that the publication concerned a matter of public interest and that responsible and fair steps were taken to gather, verify and publish the information3.
It was established that the health and safety concerns of the villagers were clearly of public interest. The High Court also found that the first article merely reported these concerns and did not make any allegations against RAGB. The High Court also noted that Malaysiakini contacted the Bukit Koman Anti-Cyanide Committee (BCAC)’s chairperson to verify that the claims were made. This satisfied the test of responsible journalism.
As for the second and third article and the accompanying videos, these related to two BCAC press conferences. The High Court found that these publications qualified for the defence of reportage, a special form of the Reynolds defence where the public interest lies not in the content of a reported allegation, but the fact that it had been made4. As long as the publisher reproduced such an allegation in a balanced manner and without embellishment, further verification was unnecessary. The High Court found that Malaysiakini had merely reproduced the press conferences and therefore qualified for the defence of reportage.
RAGB had argued that reportage had not been specifically pleaded in Malaysiakini’s statement of defence and thus they could not rely on it. The High Court however held that it was a part of the Reynolds defence of responsible journalism, which had been pleaded. Both reportage and Reynolds centred around the publication of a matter of public interest and the corresponding duty of the publisher to disseminate that information.
Despite the initial win in the High Court, Malaysiakini lost appeals in both the Court of Appeal and in the Federal Court.
In 2018, the Court of Appeal unanimously overturned the High Court’s decision5. It accepted that the subject matter was of public interest however, found that Malaysiakini had not practised responsible journalism as it had not contacted other experts to verify the villagers’ claims.
The Court of Appeal also found that reportage was a distinct defence from Reynolds. In fact, the Court said, the two defences were mutually exclusive and incompatible as the reportage defence involved merely reporting an allegation neutrally without embellishment while Reynolds involved taking reasonable steps to verify the content of the allegation. Hence, pleading qualified privilege and responsible journalism would not suffice and Malaysiakini was thus precluded from relying on the reportage defence.
Furthermore, the Court of Appeal stated that Malaysiakini could not have relied on the reportage defence in any event as it found their reporting was not fair, disinterested and neutral.
The majority of the Federal Court agreed (3-2) with the Court of Appeal decision and found Malaysiakini to have defamed RAGB6.
The minority however, sided with the High Court decision. Federal Court Judge Harmindar Singh pointed out that underpinning both defences of reportage and Reynolds was the public policy of the duty to impart and receive information. As Malaysiakini had pleaded qualified privilege and made specific references to responsible journalism and public interest, they were entitled to rely on reportage and the Reynolds defence. He also found that the publications, while damaging to the respondent, were on a matter of great public concern and balanced in content and tone, and did not assert the truth of the allegations reported.
Restricting the media
The majority decision of the Federal Court poses significant problems for the media in reporting on matters of public interest. News is dynamic and has been described as a “perishable commodity”7. To delay publication, even for a short period, may cause it to lose value and interest.
Journalists therefore need some leeway when reporting on matters of public interest. Such reporting can be of paramount importance to the public – from the 1MDB corruption scandal to environmental matters such as the transboundary haze or water pollution.
The media is under public pressure to report speedily and often update their reports as more facts become available in a breaking news situation.
The public interest defence allows journalists to publish news and keep the public informed, even when the facts are not yet crystal clear. It protects journalists as long as they can show that the report was in the public interest. This can include contacting sources to verify the truth of a report’s contents as envisioned in the Reynolds defence, or reporting neutrally on accusations that have been made, as set out in the reportage defence.
As Justice Harmindar pointed out in his minority judgment, courts have allowed the Reynolds or reportage defence to be used in the same case as alternative defences. From a media freedom perspective, this is certainly preferable than the technical reading taken by the majority in the Federal Court.
When a newsroom is operating on tight deadlines and bringing to light a public interest matter, it complicates matters greatly for editors to have to figure out whether an article would fall into either a Reynolds defence or reportage. They would need to constantly ask themselves questions like, “Is this reportage? Can we insert our own opinion on this matter? Do we need to get experts to verify this statement before we can publish it?”
By hamstringing newsrooms in this way, the Federal Court majority appears to be blind towards the realities of news reporting and the workings of the media. News reports, especially on matters of public interest, are often dynamic, interested, and partial. The role of the media is not limited to blandly report on matters of public interest, it is also to inform the public of views and to critique, where appropriate, on such matters. A news report may report on matters of public interest yet contain views by others or critiques. To deny a journalist the reportage defence in the event an opinion is expressed is ignorant towards the dynamic and holistic nature of the media, especially in this age of social media.
Further, by deciding that the defence of reportage and Reynolds are mutually exclusive, the Federal Court is effectively restricting the form and content of news reports. If a journalist wishes to rely on the defence of reportage, the report must be neutral. If the report expresses a view or that of others in the same piece, the defence of reportage becomes unavailable, even if the matter is of public interest. And worse, the journalist cannot then rely on the Reynolds defence to show the news was verified, if reportage was pleaded instead of Reynolds.
This creates a chilling effect on newsrooms. Editors may choose not to run certain stories as they would be unsure whether or not the public interest defence to defamation suits would be available to them. It may also be impractical for the newsroom to be able to verify certain claims in time to meet the requirements of the Reynolds defence, and the news may lose its value to the public due to the delay.
Defamation law reform
Perhaps a solution would be to amend our Defamation Act 1957 to bring it into line with modern times.
Other jurisdictions such as the United Kingdom and Australia have codified the public interest defence to ensure greater certainty for those who need to rely on it. The UK’s Defamation Act 2013, for instance, simplifies the public interest defence. To succeed in this defence, defendants have to show that:
the statement was on a matter of public interest; and
the defendant reasonably believed that publishing the statement was in the public interest.
It also codifies the defence of reportage by stating that if the statement was “part of an accurate and impartial account of a dispute”, then the fact that the defendant had not taken steps to verify the truth of the claim would not count against him or her8.
Both the UK and Australia went through reviews and consultations before amending their defamation laws. There are thus subtle differences between their laws designed to suit their respective jurisdictions. An argument could be made, for instance, that requiring reports to be “impartial” or neutral in order for the reportage defence to apply is too subjective and and ignores the realities of today’s news reporting. It would therefore be beneficial for the Malaysian government to undertake a similar review of Malaysian defamation laws to ensure up-to-date legislation that is fit for purpose.
Judging a defamation case is not a straightforward matter and involves the balancing of competing interests. On the one hand, a person or corporation’s reputation could be harmed by defamatory statements, causing potential damage to livelihoods, mental health and good standing in society. On the other hand, the right to freedom of expression and the public’s right to information also deserve protection as they serve public goods of their own.
Alleged defamation by the media, especially, warrants careful consideration. The media plays a crucial role in providing the public access to information and acting as a watchdog in highlighting issues of public interest. While it is important to hold the media to high standards to ensure that reliable information is published, setting too high or too technical a standard may deter them from playing their watchdog role, to the public’s detriment.
It must be reminded that the freedom of speech and expression is enshrined in Article 10(1)(a) of the Federal Constitution. The freedom of speech and expression includes the freedom to receive information. The state, that means all branches of government, including the judiciary, has a duty to ensure that every citizen’s freedom of speech and expression are protected. Although restrictions to the freedom of speech and expression can be made on the grounds of defamation, any restriction must be proportionate and go no further than necessary to protect the reputation of the claimant. Defendants must also be allowed to avail themselves of all defences and not have their defence denied solely due to a technicality.
The Federal Court decision in the RAGB case sets an unrealistically high standard for the media and places unnecessary technical limitations on their ability to defend itself from defamation suits. This will be detrimental not just to the media’s freedom of expression but ultimately, the public’s right to information on matters of public interest.
Evidence was adduced during trial that the various health issues suffered by Bukit Koman villagers could be attributed to traces of herbicide and not due to the presence of cyanide.
The Reynolds defence of responsible journalism was set out in the UK House of Lords case of Reynolds v Times Newspaper Ltd and others  2 AC 127.
Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd  12 MLJ 476, para 18.
See Flood v Times Newspaper Ltd  2 WLR 760 at 783 (SC).
Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd  4 MLJ 209.
Mkini Dotcom Sdn Bhd v Raub Australian Gold Mining Sdn Bhd  5 MLJ 79.
The Sunday Times v United Kingdom (No 2) (1991) 14 E.H.R.R. 229, 242 (para 51).
UK Defamation Act, section 4(3). A separate