Abdul Rahman Sebli FCJ (Majority):

[1] The factual background of the case and the leave questions posed for our determination have been set out by my learned brother Harmindar Singh Dhaliwal FCJ in his judgment. For the purposes of this judgment, I shall leave out the factual background but shall set out the leave questions again, which are as follows:

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 for the journalist to establish his neutrality by independent verification?

6. In publishing video recordings of statements 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?

[2] As can be seen, leave questions 1-7 are concerned only with issues pertaining to the defence of reportage vis-a-vis the Reynolds defence of responsible journalism or qualified privilege and questions 8-9 with recovery of damages by a company that has been voluntarily wound up. Questions 1-7 are inextricably connected and shall be dealt with together. I do not find it necessary to consider them separately as that will involve overlaps and unnecessary repetitions.

[3] The Reynolds defence of responsible journalism or qualified privilege refers to the principle laid down by the House of Lords in Reynolds v. Times Newspaper Ltd and Others [2001] 2 AC 127; [1999] 4 All ER 609. To succeed in establishing the common law defence, two requirements must be met:

(a) The publication must be on a matter of public interest; and

(b) The steps taken to gather, verify and publish the information must be responsible and fair.

[4] My learned brother Harmindar Singh Dhaliwal FCJ in his judgment has ruled against the appellants on the issue of whether the impugned 2nd Article and 1st Video were actionable in defamation. For the reasons given by His Lordship, I agree.

[5] As a starting point, the parties were on common ground that the statements in the three articles and the two videos published by the appellants were defamatory of the respondent. The articles and videos impute to the respondent dishonourable or discreditable conduct or motives or lack of integrity and being an unethical and greedy mining company. The parties were also on common ground that the articles and videos were published on a matter of public interest.

[6] There was also no disagreement over the High Court's observation at para [17] of the judgment that the concerns of the Bukit Kom