Malaysiakini did not plead defence of reportage, says lawyer

Online news portal Malaysiakini did not plead the defence of reportage but only raised the issue during submissions at the High Court, argued Raub Australian Gold Mine (RAGM) at the Court of Appeal today.

Yet, RAGM's senior counsel Cecil Abraham told a three-member bench, the court had decided to accept it.

He submitted that the defence of reportage should have been made separately from the defence of qualified privilege, which was cited in Malaysiakini's defence, in the defamation suit filed by the gold mine company.

As such, the senior lawyer said the appellate court should allow his client's case.

The company is appealing against a High Court decision on May 23 which dismissed its claim against the news portal and three other defendants, all of whom were members of the editorial team at the time.

In his submission, Cecil said although the High Court had found the three articles and two videos produced by Malaysiakini regarding its client based on a complaint by the Bukit Koman villagers in Raub, Pahang, to be defamatory, the judges had accepted the portal's defences.

“There has been no cross-appeal by them (Mkini Dotcom Sdn Bhd) on the court finding the articles as defamatory, and hence the court should accept the High Court's decision,” he said in his reply to a question by Justice Mary Lim.

“The court should also decide whether the defence of reportage is separate or distinct defence, or a species of qualified privilege, which has to be pleaded as the Reynolds defence, as part of responsible journalism."

Cecil further stated that the articles published by the portal seemed to be malicious and partisan to the villagers and had not carried a response from RAGM.

He added that the chemical used to mine gold was not a poisonous form of cyanide, but rather sodium cyanide, which is colourless and odourless.

Cecil contended that as part of Malaysiakini's investigative reporting, there should have been research done on the chemicals used in mining, and that his client should not have been portrayed as endangering the villagers without obtaining comments from the company.

“They should at least have gotten comments from the Department of Environment,” he added.

The senior lawyer also pointed out that since two of the villagers and another news portal, Free Malaysia Today, had apologised to RAGM following the purported defamatory comments made, Malaysiakini should do the same.

"They refused to insert a correction or remove the three articles. In fact the articles can easily be accessible on the World Wide Web till today,” Cecil said.

It was reported that the Kuala Lumpur High Court had dismissed RAGM's suit on the grounds that it accepted Mkini Dotcom Sdn Bhd's defence of qualified privilege of responsible journalism as well as reportage.

Justice Rosnani Saub in her decision said the most important aspect of the Reynolds qualified privilege defence is the element of public interest.

“In my opinion any matter or issue that concerns the health, wellbeing, and safety of a community is always a matter of public concern, not just to that particular community but also to the general public,” she had said in her 37-page judgment.

"The said articles and videos are matters of public concern where the public in general has the right to know the information, and the defendants as media and journalists were under at least a moral duty to publish the same,” the judge added.

The judge also noted that reportage is a special defence and rare form of Reynolds privilege which can be raised as a defence in two situations - in responsible journalism where the public interest in the reported allegation lies in its contents, or reportage where the public interest lies in the making of the allegation itself, and not the contents of the allegation.

Today's appeal was heard before Justice Abang Iskandar Abang Hashim who sat with Justice Lim and High Court judge Suraya Othman.

Malaysiakini was represented by James Khong and Syahredzan Johan.

Justice Abang Iskandar has fixed June 22 for Khong to reply Cecil's submissions.- Mkini