Federal Court To Hear Malaysiakini S Appeal On Gold Mine Case Tomorrow

---

 


The Federal Court is scheduled to hear tomorrow Malaysiakini's appeal against a lower court’s decision which found the news portal's reports on the Raub Australian Gold Mine (RAGM) to be defamatory.
The matter will be heard before a five-member bench of the apex court.
In January 2018, the Court of Appeal had ordered Malaysiakini to pay a sum of RM350,000 - RM200,000 in damages and another RM150,000 in legal costs - to RAGM after it ruled that the High Court in Kuala Lumpur had erred in dismissing the latter's claim.
“The Federal Court's decision would have a tremendous impact on press freedom in Malaysia and affect the manner in which journalists can practise their craft,” said Malaysiakini editor-in-chief Steven Gan.
One of the key issues to be determined by the Federal Court is whether the defence of reportage would be accepted by the judiciary. While the defence of reportage has been accepted in a number of countries, this is the first time the matter has been brought to the Malaysian courts.
In a nutshell, 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.
Media organisations using the defence can argue that they are not implying the offending statement is true but simply reporting - in a neutral manner - that the potentially libellous statements were made, even if they doubt the accuracy of the statement.


Malaysiakini chief executive officer Premesh Chandran said whatever the result tomorrow, the independent news website will continue with its mission to report the news and views that matter.
"Media has evolved rapidly. There is now a constant flow of information which is being transmitted in lightning speed. Media companies have to quickly dissect fact from falsehoods and report valid views, when the truth of the matter is difficult to determine but is of public interest,” he said.
"We have to do our job within the law, but at the same time, we hope the law will give us the space to do our job - serving the public good while ensuring individual reputations are not damaged by falsehoods.”
Malaysiakini won case in High Court
The lawsuit was over a series of Malaysiakini reports on the health concerns of Bukit Koman villagers who raised the alarm that sodium cyanide, a highly poisonous compound, was used by the mine in the extraction of gold.
The gold mine has since gone into liquidation and is no longer in operation.
On May 23, 2016, Malaysiakini won the case in the High Court. The High Court ordered the gold mine to pay RM50,000 in costs to Malaysiakini. However, on Jan 11, 2018, the Court of Appeal reversed the High Court decision.
In the wake of the Court of Appeal decision, Malaysiakini raised RM350,000 from its supporters in two weeks to pay for the damages and costs. 
After granting leave to Malaysiakini to challenge the appellate court decision in 2018, Federal Court judge Zainun Ali, who led a three-member bench, said the questions of law posed to the apex court should focus on the defence of reportage and whether damages could go to a company that has gone into insolvency. 




Tomorrow, the Federal Court will deliberate on nine questions of law after hearing submissions from lawyers representing both sides.
Malaysiakini is represented by counsel Cyrus Das, James Khong and Syahredzan Johan, while lawyers Cecil Abraham and Sunil Abraham are appearing for RAGM.
The nine questions
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 ongoing 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 if the publication is fair and balanced or for the journalist to establish his neutrality by independent verification?
6. In publishing video recordings of statements made by third parties in a press conference, whether the mere publication of such video could be held to be an embellishment of the allegations or an embracing or adoption of such statements as the truth by the news media?
7. Whether in an ongoing dispute, the impugned articles 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?
8. Whether it is proper to award general damages for loss of goodwill and vindication of reputation to a plaintiff company that has independently been subjected to a voluntary winding-up by its creditors?
9. Whether loss of goodwill can be recovered as a component of defamatory damages by a plaintiff company that has gone into insolvency? - Mkini

---