The court ruled that the reportage defense is part of the Reynolds privilege, applicable without separate pleading, protecting neutral reporting on matters of public interest, irrespective of truth.

Introduction

[1]This appeal raises issues concerning certain important aspects of the law of defamation . The nucleus of the arguments advanced in the appeal concern the defence of reportage in the context of qualified privilege and the Reynolds defence of responsible journalism (see Reynolds v Times Newspaper Ltd and Others [2001] 2 AC 127

[2]This appeal arises from the reversal by the Court of Appeal on 11 January 2018 of the decision of the High Court at Kuala Lumpur delivered on 10 June 2016 . After a full trial, the High Court had dismissed the respondent’s claim for defamation and malicious falsehood in relation to the publication of three articles and two videos by the appellants. The ar tic les and videos pertain to news reports of the gold-mining activities of the respondent and the risk to the health, well-being and safety of the neighbouring Bukit Koman community as a whole.

[3]This appeal was then filed pursuant to the granting of leave of the following 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 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 made 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 embracing or adoption of such statements as the truth by the news media?

7.Whether in an ongoing 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?

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?”

The Material Facts

[4]The relevant background facts leading to the filing of the present appeal are well stated in the court judgments and in the parties’ submissions. The salient facts, as far as they are relevant to the present appeal, are reproduced as follows. For convenience, the parties will be referred to as they were in the court of first instance or by their names as abbreviated interchangeably.

[5]The plaintiff was a company involved in operating a gold mine located in Bukit Koman, in the district of Raub, State of Pahang. Prior to the filing of this appeal, and in fact during the hearing of the appeal in the Court of Appeal itself, the plaintiff had been voluntarily wound-up and remains in liquidation to this day. The 1^st defendant (“Mkini”) is a company that owns and operates an online news portal known as Malaysiakini on its website at www.malaysiakini.com. The 2^nd defendant is the assistant news editor of Malaysiakini. The 3^rd defendant is the senior journalist of Malaysiakini. The 4^th defendant was, at the material time, an intern at Malaysiakini and was pursuing a degree in Bachelor of Arts in Journalism.

[6]The plaintiff’s suit a