In Malaysia, the interplay between the notion of freedom of expression, the rights of the media to publish statements as well as articles at will, and the law of defamation is very much a complex one. This is particularly exacerbated in a country of diverse political views, differing social and economic backgrounds, increasing wealth gaps between the minority urban elite and the majority rural folk as well as increasing racial polarisation. In this context, the role of online news platforms or blogs seeking to provide different perspectives by reference to the daily news, political viewpoints or perceived matters of general or public interest has become increasingly prevalent – the historical reliance on receiving news or insights from traditional broadsheets no longer being the norm.
Against this backdrop, there have been significant decisions of the courts in Malaysia in so far as the law of defamation is concerned vis-à-vis, articles or statements published by online news portals or blogs relating to the defences of justification, qualified privilege generally and fair comment. In this article, the recent decision of the Federal Court of Malaysia in Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd by way of Federal Court Civil Appeal No. 02(f)-61-08/2018(W) that was delivered on 2nd July 2021 will be specifically examined ("Mkini Dotcom v RAGM")1.
The decision of the Federal Court in Mkini Dotcom v RAGM is instructive in that it addresses the following principal issues, namely, (i) the application of the defence of reportage, and (ii) the distinction between the said defence of reportage and the defence of responsible journalism. The ancillary issue that the decision in Mkini Dotcom v RAGM addresses is the notion of how damages are claimed in a libel action for reputational harm or loss of goodwill to a business or company, where post the filing of the writ action, the claimant is the subject of voluntary liquidation.
The claimant (Respondent in the proceedings before the Federal Court), Raub Australian Gold Mining Sdn Bhd ("RAGM"), is a gold mining company that mines and produces gold dore bars at its Carbon-in-Leach ("CIL") plant. The plant is in Bukit Koman in the district of Raub, Pahang (the "Plant"). RAGM commenced its operations on or about February 2009 and has been in operations for over five and a half years.
The Plant is located approximately one (1) kilometre away and downstream from Kampung Bukit Koman. The river, Sungai Koman is located on the eastern boundary of the tenement.
Since the Plant started its operation in 2009, there had been numerous protests staged by the villagers residing near Bukit Koman in Raub, Pahang Darul Makmur. These protests organised by the Anti-Cyanide Gold mining activist group ("ACG") (which included its principal officer bearers Mr. Wong Kin Hoong, Mr. Hue Fui How and Ms. Hue Shieh Lee) thereafter became large scale rallies in Raub. RAGM contended that it was the recipient of negative publicity arising from the acts of the ACG.
RAGM contended that over a period of years, in support of the ACG, Mkini Dotcom Sdn Bhd by way of its online new portal at www.malaysiakini.com (hereinafter referred to as the "Malaysiakini website") published numerous articles that did not depict RAGM in a positive light.
In 2012, this culminated in the Defendants, namely, Mkini Dotcom Sdn Bhd and its journalists, Mr. Lee Weng Keat, Mr. Wong Teck Chi and Mr. Victor TM Tan2 (who were the Appellants in the Federal Court), publishing the following Articles and Videos, all of which referred to RAGM on the Malaysiakini website:
- the 1st Article headlined "Villagers fear for their health over cyanide pollution" dated 19th March 2012, authored by Mr. Lee Weng Keat;
- the 2nd Article headlined "78pct Bukit Koman folk have 'cyanide-related' ailments" dated 21st June 2012, authored by Mr. Wong Teck Chi;
- the 1st Video entitled "78pct Bukit Koman folk have cyanide related ailments" dated 21st June 2012;
- the 3rd Article headlined "Raub folk to rally against 'poisonous' gold" dated 2nd August 2012, authored by Mr. Victor TM Tan; and
- the 2nd Video published on 2nd August 2012 bearing the following link - http://www.malaysiakini.tv/#/video/24267/raub-folks-to-rally-against-poisonous-gold-mine.html.
RAGM took issue with the said Articles and Videos on the principal grounds that the statements contained therein were prima facie defamatory of RAGM in their plain and ordinary meaning and/or by way of innuendo.
1. At the outset, disclosure is made that Tan Sri Dato' Cecil Abraham, Dato' Sunil Abraham, Ms. Noor Muzalifah Binti Shabudin and Ms. Anne Sangeetha Sebastian appeared as counsel for the successful party, Raub Australian Gold Mining Sdn Bhd.
2. Mkini Dotcom Sdn Bhd, Mr. Lee Weng Keat, Mr. Wong Teck Chi and Mr. Victor TM Tan may also be referred to collectively as the "Defendants" where appropriate.
Originally published 10 Sep 2021
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