First Published: Friday, 21 Aug 2026 1:53 PM MYT Last Modified: Friday, 21 Aug 2026 2:02 PM MYT AUGUST 21 — In the case of Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd [2021], the facts are as follows.The first appellant (Mkini Dotcom Sdn Bhd) owns and operates an online news portal known as Malaysiakini.The other three appellants were, at the material time, respectively, Malaysiakini’s assistant news editor, its senior journalist and its videographer while the respondent (Raub Australian Gold Mining Sdn Bhd) was, at the time, operating a gold mine in Bukit Koman in the district of Raub, Pahang.The respondent sued the appellants for, inter alia, defamation for publishing three articles and two videos on Malaysiakini alleging that its use of cyanide in its gold mining activities had caused various health issues among the villagers in Bukit Koman and had so polluted the environment that even birds and vegetation had died.The respondent alleged that the contents of the articles and videos were false and were intended to injure its reputation, trade and business.The appellants, on the other hand, contended that the articles and videos were not defamatory of the respondent but concerned matters of public interest which the appellants were under a duty, at least a moral one, to publish.The appellants relied on the defences of qualified privilege, fair comment and the right to freedom of expression and said they had exercised responsible journalism.Following a trial in the High Court, the learned trial court dismissed the defamation claim after finding that although the appellants’ publications were defamatory of the respondent, they were protected by the Reynolds defence of responsible journalism (the Reynolds defence) as well as the defence of reportage.The learned trial judge found from the evidence that the respondent’s use of sodium cyanide in its plant was not the cause of any environmental pollution or the supposed illnesses suffered by the residents of Bukit Koman.Rather, their troubles were caused by the use of herbicides.The learned trial judge held that the appellants had shown that the matters they reported were of public interest and that they had taken responsible and fair steps to gather, verify and publish the information.The learned trial judge also found that the very first article by the appellants merely reported the concern of the villagers as to their health and their suspicion that the environmental pollution might have been caused by the respondent, and that the article made no allegations or criticisms against the respondent nor contained embellishments by the appellants.The learned trial judge held that the fact that the appellants had contacted the chairman of the residents’ Ban Cyanide Action Committee (BCAC) before publishing the first article was sufficient to constitute responsible journalism.As for the second and third articles and the two videos linked to them, the learned trial judge found that they were mere reproductions of two press conferences called by BCAC which various news media, including the appellants, were invited to attend.The learned trial judge further found that the appellants had merely reported what took place at the press conferences without adopting the contents of those articles and videos as their own or embellishing them.Although the appellants did not specifically plead the defence of reportage, the trial judge held that that defence was ‘one form of the Reynolds privilege’ and was considered as ‘part of the qualified privilege defence’ and that since the appellants had pleaded qualified privilege, it was ‘sufficient to enable them to prove reportage at the trial’.On the whole, the learned trial judge found that the articles and videos were published in a fair, disinterested and neutral manner and that the appellants did not adopt the allegations contained in them as their own.On appeal to the Court of Appeal, however, the appellate court reversed the dismissal of the defamation claim and awarded the respondent RM200,000 in general damages for loss of goodwill and vindication of its reputation.In summary, the appellate court ruled that:(a) the appellants could not avail of the defence of responsible journalism because they had not satisfied the ten-point test propounded in Reynolds;(b) the allegations made against the respondent were not reported in a fair, disinterested and neutral manner but were one-sided and slanted against the respondent;(c) the appellants had embellished the allegations against the respondent and adopted them as the truth without checking their veracity with other independent experts or contacting the respondent to get its side of the story;(d) the defence of reportage was not available to the appellants because it was not specifically pleaded; and(e) merely pleading qualified privilege or the Reynolds defence was insufficient to allow the appellants to rely upon the defence of reportage.The Federal Court granted the appellants leave to appeal against the Court of Appeal’s decision on nine questions of law.The first question was whether the defence of reportage was a separate defence from qualified privilege or the Reynolds defence and had to be separately pleaded.The Reynolds defence refers to the principle laid down by the House of Lords, then the United Kingdom’s apex court, in Reynolds v Times Newspapers Ltd and others [2001].By a majority (3:2), the Federal Court dismissed the appeal and affirmed the Court of Appeal’s decision.Delivering the majority judgment, Federal Court Judge Abdul Rahman Sebli (as he then was) said that as a matter of doctrine and principle, the defence of reportage could not be reconciled as part of the Reynolds defence (of responsible journalism) or qualified privilege.According to the learned apex court judge, the gulf between the two defences was too wide to be abridged as defences of the same species.In the Reynolds defence, the focus was on whether the journalist had taken reasonable steps to verify the truth and accuracy of any allegation he had reported.In contrast, reportage was not concerned with the truth and accuracy of the defamatory allegations but with the narrower public interest of knowing that the allegations were in fact made and whether the journalist had reported them in a detached but fair, disinterested and neutral way. The author argues that reportage is a distinct defence that protects only fair, detached and neutral reporting, not a journalist’s endorsement of defamatory allegations. — Unsplash pic Neutral reporting was the single most important element in reportage whereas it was not an element in the Reynolds defence.Given the difference between the two, it was entirely contradictory that a defence that was unconcerned with the truth and accuracy of the allegations could be regarded as part of the Reynolds defence which was concerned with the exact opposite.They were, in that sense, opposite ends of the pole; the only meeting point between the two was that they were both public interest defences.In its judgment, the Court of Appeal had found the appellants had failed to show that the allegations made against the respondent were being reported in a fair, disinterested and neutral manner without the appellants embracing, garnishing and embellishing the allegations.In other words, the appellants’ reporting was unbalanced since the version of one side – that of the Bukit Koman community and the opposition politicians – was showcased and given prominence.Though there were five other neutral articles being published on the respondent’s website at about the same time, these five articles were neutralised by the appellants’ reporting.This was so since the appellants’ reporting was not merely couched in a sarcastic tone which might be permissible as a journalistic device but couched in an extremely accusatory and damaging tone which went beyond mere neutral reporting.In fact, in comparison to the other articles reported on the same matter in other newspapers or media, the appellants’ reporting asserted something more sinister on the part of the respondent.As such, the appellants’ reporting was slanted towards bias against the respondent.The majority in the Federal Court agreed.The following words of the learned Federal Court judge should remind journalists:“If [a] journalist espouses or concurs with the defamatory statements or imputations, he loses the protection of reportage.“Espousing or concurring with the defamatory statements or imputations need not be express.“They can be implied, for example by using headlines that promote and give prominence to the defamatory statements or imputations, taking into account the tendency of the general public to read only the headlines.”Veteran journalist Ahirudin Attan is therefore spot on in saying that a defamation suit is not necessarily an attack on press freedom.** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.