Defamation: The Separation of Responsible Journalism and Reportage in Malaysiakini v Raub Australian Gold Mining

INTRODUCTION

In our previous article entitled “Defamation: The Media Defences of Reynolds’ Privilege and Neutral Reportage”, we highlighted the Court of Appeal’s decision in Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 4 MLJ 209  which stated that the defences of Reynolds’ Privilege (responsible journalism) and neutral reportage are separate and distinct defences that has to be pleaded separately. In that case, the Court of Appeal found Malaysiakini (a news publication site) and the other respondents liable for defamation.

Just to recap, Raub Australian Gold Mining Sdn Bhd (RAGM) sued Malaysiakini and several of its employees for defamation and malicious falsehood over three articles and two videos published on the news portal’s website. The allegation against the mining company was that its use of cyanide in carrying out gold mining operations near a village in Pahang had negatively affected the health of the nearby villagers, decimated wildlife and vegetation in their area and polluted the environment.

THE COURT OF APPEAL’S DECISION

Briefly, Malaysiakini and its employees were held liable for defamation due to the following reasons:-

1. They had not acted fairly and responsibly in their reporting of the allegations made against RAGM. In this regard, they failed to meet the test for responsible journalism set out in the case of Reynold’s v Times Newspapers Ltd [2001] 2 AC 127;

2. The defence of neutral reportage was not specifically pleaded by the respondents and the trial judge should not have allowed them to rely on it;

3. Reportage is a separate and distinct defence from responsible journalism. A defendant can only rely on one and not both defences as they are incompatible with one another;

4. Even if the defence of neutral reportage can be considered as part of the Reynold’s responsible journalism defence, Malaysiakini and its employees failed to prove that they are entitled to rely on the defence due to the following reasons:-

a. Only one version of one side of the dispute was reported;

b. No attempts were made to contact any independent government bodies prior to publication of the articles and videos to show that the respondents were neutral and not taking sides;

c. There was a cavalier and reckless attitude on the part of Malaysiakini and the other respondents;

d. The respondents should have contacted the gold mining company to get its side of the story to maintain a balanced reporting; and

e. The tone of one of the articles was not neutral, unbalanced and unfair as it did not carry both versions to the dispute.

Dissatisfied with the Court of Appeal’s decision against them, Malaysiakini and the other respondents sought for permission to appeal to the Federal Court – the highest court in Malaysia. They were subsequently granted permission to appeal on 9 questions of law.  By a majority of 3-2, the Federal Court upheld the decision and findings made by the Court of Appeal.

This article will discuss the apex court’s decision relating to Reynold’s defence of responsible journalism and neutral reportage – commonly known as the media defences.

THE FEDERAL COURT’S DECISION

The Questions of Law

In Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd [2021] 7 CLJ 145, the 7 questions of law (a.k.a Leave Questions) relating to the media defences before the Federal Court are set out below:-

1. Whether reportage is in law a separate defence from qualified privilege or the Reynolds defence of responsible journalism and whether it is to be treated as being mutually exclusive?

2. Whether the defence of reportage being an off-shoot of the Reynolds defence of responsible journalism needs to be pleaded separately from the plea of responsible journalism itself?

3. Whether a defendant is obliged to plead either reportage or responsible journalism and not plead them in the alternative?

4. Whether the defence of reportage which is in law based on an on-going matter of public concern is sufficiently pleaded if it is stated by the defendant that the publications 'were and still are matters of public interest which the defendants were under a duty to publish'?

5. Whether the proper test to determine if the defence of reportage succeeds is the test of adoption by the journalist of the publication as true and not for the journalist to establish his neutrality by independent verification?

6. In publishing video recordings of statements by third parties in a press conference, whether the mere publication of such videos could be held to be an embellishment of the allegations or an adoption of such statements as the truth by the news media?

7. Whether in an on-going dispute, the impugned article or videos ought to be considered together with previous and continuing publications of the news media on the same subject matter of public concern in determining the defence of reportage?

Are the two defences separate and distinct from one another? – Leave Questions 1 & 2

The issues raised in Leave Questions 1 to 4 can be traced back to the decision of the High Court where Malaysiakini and its employees (hereinafter referred to as the “Appellants”) were allowed to rely on the defence of neutral reportage in their written submissions although it was not expressly pleaded in their Defence. The Appellants contended that reportage formed part of the Reynolds defence of responsible journalism or qualified privilege (which was pleaded in their Defence) and as such, reportage did not have to be pleaded expressly. The High Court agreed with them.

However, the Court of Appeal disagreed and reversed the decision stating that the defence of reportage is separate and distinct from Reynold’s Privilege. To rely on the same, it must be expressly pleaded in the Defence. This brings us to the issues raised in Leave Questions 1 to 4.

The Federal Court agreed with the Court of Appeal’s judgment that the defence of reportage is separate and distinct from the Reynold’s defence of responsible journalism. The Federal Court referred to the English case of Roberts & Anor v Gable & Ors [2008] 2 WLR 129 and it was highlighted that in a true case of reportage, there is no need to take steps to ensure the accuracy of the published information. However, the journalist must still take proper steps to verify that such allegations were in fact made and not adopt it as the truth in the final publication.

For a defendant to avail itself of the defence of reportage, the impugned statements must have the effect of reporting, not the truth and accuracy of the allegations, but the fact that such allegations were in fact made. If a journalist: (1) adopts the report and makes it his own; or (2) fails to report the story in a fair, disinterested and neutral way, then the defence of reportage will not be available to him.

By contrast, the Reynold’s defence focuses on whether a journalist/publisher has taken reasonable steps in verifying the truth and accuracy of the statements published. The focus of these defences are therefore different and the sole meeting point between the two is that both are public interest defences.

Viewed in the context explained above, the Federal Court held that if the Appellants wished to rely on the defence of reportage, they ought to have expressly and separately pleaded the same in their Defence – something which was not done. The Appellants were not be allowed to piggyback on the Reynold’s defence of responsible journalism and rely on reportage as it cannot be reconciled as part of the Reynold’s defence or qualified privilege. That being said, the Court did go on to consider whether on the evidence, a defence of reportage has been made out by the Appellants.

The Federal Court agreed with the findings of the Court of Appeal below and held that the tone of the publications by Malaysiakini was extremely accusatory, unbalanced and unfair. In other words, the impugned publications were not neutral at all as it had taken a position in favour of the people who provided the information to them. Therefore, the protection afforded by the defence of neutral reportage did not extend to the Appellants.

In determining whether the Appellants were entitled to rely on the defence of reportage, the Court also took into account the previous publications made by Malaysiakini. As such, leave question 7 was also answered affirmatively.

Can you plead both defences at the same time? – Leave Question 3

The Federal Court also agreed with the English Court’s view in Charman v Orion Publishing Group Ltd & Ors [2008] 1 All ER 750 in deciding whether the two defences can be pleaded in the alternative to one another:-

In Michael Charman (supra), Sedley LJ at [91] appeared to take the view that the defences of reportage and responsible journalism were incompatible in that once a defendant has relied on the defence of reportage it makes it forensically problematical to fall back upon an alternative defence of responsible journalism and due to this difficulty, pleaders may decide which it is to be; reportage or responsible journalism.

As explained earlier, the focus of the reportage and responsible journalism are different. As such, the Federal Court held that a journalist who wishes to rely on reportage parts company with the Reynold’s defence of responsible journalism, which allows one to put forward defamatory materials as true and accurate – something which reportage does not allow for.

Consequently, the apex court held that a defendant has to choose between pleading either reportage OR responsible journalism in his Defence. Pleading in the alternative is not allowed and would not work. It would be contradictory for a defendant to, on one hand, state his belief in the truth and accuracy of the impugned statement (responsible journalism), and on the other hand also state that he does not (reportage).

How does one plead the defence of reportage? – Leave Question 4

It is also worth noting that the Federal Court pointed out that the Appellants’ Defence lacked the necessary elements to sustain the defence of neutral reportage. Apart from the element of public interest, the Appellants failed to plead the two other key features of reportage, namely, (1) the element of neutrality; and (2) the element of not subscribing to a belief in the truth of the imputations.

The apex court also highlighted that there was no plea in the Appellants’ Defence stating that they did not subscribe to a belief in the truth and accuracy of the defamatory statements. The Appellants also did not state that they were simply reporting the words in a neutral fashion.

Based on the above, it is clear that when one wishes to rely on the defence of reportage, it is insufficient to just merely state that the defamatory words were published due to public interest. A defendant must clearly state that he is merely reporting what has been said in a neutral manner and there is no belief in the truth of the statements. These vital elements must be clearly pleaded, or a defendant would not be entitled to rely on the protection of reportage.

What is the right test to be applied in determining whether a defence of reportage is successful? – Leave Question 5

A thing to note here is that the Federal Court expressly held that if a journalist espouses or concurs with the defamatory statements or imputations, he loses the protection of reportage. Espousing or concurring with the defamatory statements or imputations need not be express. They can be implied, for example by using headlines that promote and give prominence to the defamatory statements or imputations, taking into account the tendency of the general public to read only the headlines. To put it in simpler terms, the test to be applied is whether there was an adoption by the journalist of the publication as true.

Can mere publication of video recordings of statements by third parties be considered as embellishment of the allegations or adoption of the statements as true? – Leave Question 6

In answering the question above, the Federal Court held that although the videos contained statements made by third parties and Malaysiakini was merely publishing it, the said videos were linked to articles which are clearly biased and derogatory. This is effectively adoption or embellishment of the videos and articles by the publisher. To quote the Federal Court, “repeating someone else’s libelous statement is just as bad as making the statement directly.”

Furthermore, in the absence of any caveat (express or implied) by the Appellants that they did not subscribe to a belief in the truth of the articles and videos, they must be taken to have adopted them as their own.

Conclusion

The Federal Court’s decision in the present case has certainly brought about a big impact on the law of defamation. With this ruling by our apex court, defendants to a defamation suit can no longer plead the defence of Reynold’s responsible journalism and reportage in the alternative. A decision must be made right at the start as to which defence they intend to rely on.

The Court’s decision would also most certainly pose issues and difficulties in situations where public interest matters have to be published on an urgent basis, bearing in mind that ‘news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest’ (see Sunday Times v United Kingdom (No 2) (1991) 14 EHRR 229, 242, para 51). This is because the Court also stated that a journalist is not given a “free pass” to publish a material in a way that is defamatory of the plaintiff simply because he refused to comment on the story. The journalist still has to take the steps to verify the truth and accuracy of what has been published (although not in every detail) – something which the Court found Malaysiakini to have failed in doing as well.  

Looking at it objectively, it can also be said that the Federal Court’s decision is in line with existing judicial pronouncements, which is that there is no public interest served by publishing or communicating misinformation.

Whichever way one views the decision of the Federal Court, one thing is certainly clear, journalists must be cautious in how they phrase any articles which they intend to publish. If a piece of news has to be published on an urgent basis, the publisher/author must ensure that it is stated clearly in the article that he does not subscribe to the truth of any allegations made. Sensational headlines should also be avoided as it can also be deemed as an embellishment or adoption of the truth of the statements made.