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Reportage now an accepted defence with Malaysiakini victory

News portal Malaysiakini today won a defamation suit filed by a gold mine company, succeeding in its defence of qualified privilege, of responsible journalism as well as reportage.

The Raub Australian Gold Mining (RAGM) had filed the suit against Malaysiakini and three other defendants - all of whom are members of the website's editorial team - claiming that the publication of three articles and two videos related to the company’s gold mining operations in Bukit Koman were defamatory and malicious.

However, the defendants stressed that the publication of the articles and videos were on matters of public interest that had been in the public domain for many years.

According to the High Court in a decision today, qualified privilege, also known as the Reynolds privilege, is a defence of responsible journalism.

Before the defendants can avail of the Reynolds privilege, they must fulfil two prerequisites – that the publication concerned a matter of public interest, and that responsible and fair steps had been taken to gather, verify and publish the information.

It added that the defence of Reynolds privilege also comprises reportage. The court said that reportage is a special defence and a rare form of Reynolds privilege.

The Reynolds privilege can be raised as a defence in two situations - in responsible journalism where the public interest in the allegation that is reported 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.

High Court judge Rosnaini Saub in her judgment today said the most important aspect of the Reynolds 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 said in her 37-page judgment.

“…The said the articles and videos are matter 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.”

Extensive coverage

She also noted that prior to the publication of the three articles and two videos, there was already extensive coverage by other media outlets on the issue of gold-mining activities using cyanide.

“I think there is clear evidence that the issue pertaining to the concerns of the Bukit Koman residents about the operations of the gold mine in their town (Raub, Pahang) was clearly a matter of public interest,” she said.

The first article, she added, had merely reported the concerns of Bukit Komans residents about their health and the suspicion that the air pollution may be caused by the plaintiff’s gold-mining operation near their village.

“Defence of reportage is clearly available to the defendants with regard to the publication of the second and third articles as well as the first and second videos.”

The videos were reproduction of press conferences held by the Ban Cyanide Action Committee (BCAC). Malaysiakini and other media outlets had received invitation to attend the two press conferences.

“The defence of reportage is therefore available to the defendants because the public interest here lies not in the truth of the contents of the articles and videos, but on the fact that they had been made,” said Justice Rosnaini.

The judge was also of the view that the two press conferences were matters of public interest.

Although she was aware of the general principle that "a person who repeats the defamatory words of another will also be liable to the person defamed", it has been said that the Reynolds privilege of reportage appears to be the exception to the "so-called general rule of repetition".

Although the defendants did not specifically plead reportage in their defence, the judge said reportage was one form of the Reynolds privilege and was also considered part of the qualified privilege defence.

The defendants had earlier pleaded qualified privilege as one of their defences.

“In my opinion that would be sufficient to enable the defendants to prove reportage at the trial of the action,” she said.

The judge also added that Malaysiakini had not only been publishing news reports that were deemed adverse to the gold mine, but had also published news reports that were seen favourable to it.

The gold mine had initiated legal action against Malaysiakini in September 2012.

The company said the articles published by the news portal had damaged its reputation.

Allegations that sodium cyanide used for gold extraction were hazardous to Bukit Koman residents, the company argued, were unsubstantiated.

Read full judgment here.

Malaysiakini wins defamation suit filed by gold mine company