Mkini Dot Com & 3 Ors v Raub Australian Gold Mining Sdn Bhd (02(f)-61-08/2018(W))

VICTOR TM TAN … APPELLANTS AND RAUB AUSTRALIAN GOLD MINING SDN BHD … RESPONDENT (IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-02(NCVC)(W)-1073-06/2016 BETWEEN RAUB AUSTRALIAN GOLD MINING SDN BHD … APPELLANT

1.

2.

3.

WONG TECK CHI VICTOR TM TAN … RESPONDENTS 2 In the High Court of Malaya at Kuala Lumpur Civil Suit No: 23NCVC-108-09/2012 Between Raub Australian Gold Mining Sdn Bhd … Plaintiff And

Mkini Dotcom Sdn Bhd

Lee Weng Keat

Wong Teck Chi

Victor TM Tan … Defendants) CORAM: VERNON ONG LAM KIAT FCJ ABDUL RAHMAN BIN SEBLI, FCJ ZALEHA BINTI YUSOF, FCJ HASNAH BINTI DATO’ MOHAMED HASHIM, FCJ HARMINDAR SINGH DHALIWAL, FCJ 3 JUDGMENT 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). Also in issue is the role of the media in invoking freedom of expression in advancing the weighty interest of the public’s “right to know” and especially, in this context, the extent to which the media ought to be allowed to provide such information to the general public. [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 articles and videos pertain to news reports of the gold-mining activities of the respondent and the risk to the health, well- 4 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?

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?

Whether a defendant is obliged to plead either reportage or responsible journalism and not plead them in the alternative?

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’?

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?

In publishing video recordings of statements made by third parties in a press conference, whether the mere publication of such videos could be 5 held to be an embellishment of the allegations or an embracing or adoption of such statements as the truth by the news media?

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?

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?

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. 6 [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 1st defendant (“Mkini”) is a company that owns and operates an online news portal known as Malaysiakini on its website at www.malaysiakini.com. The 2nd defendant is the assistant news editor of Malaysiakini. The 3rd defendant is the senior journalist of Malaysiakini. The 4th 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 against the defendants was for defamation and malicious falsehood in respect of three articles and two videos published by the 1st defendant in 2012 on its malaysiakini portal. In essence, these articles and videos alleged that the plaintiff had used cyanide in its gold mining activities which had caused serious illness to the villagers and death of wildlife and vegetation and environmental pollution in Bukit Koman. The said articles and videos in summary were: 7

(a) An article titled "Villagers fear for their health over cyanide pollution" published on 19 March 2012 ("the 1st Article") which was authored by the 2nd defendant;

(b) An article titled "78 pct Bukit Koman folk have 'cyanide-related' ailments" published on 21 June 2012 ("the 2nd Article") which was authored by the 3rd defendant;

(c) A video presentation that was linked with the 2nd Article published on 21 June 2012 ("the 1st Video");

(d) An article titled "Raub folk to rally against 'poisonous gold mine” published on 2 August 2012 ("the 3rd Article") authored by the 4th defendant; and

(e) A video presentation that was linked with the 3rd Article published on 2 August 2012 ("the 2nd Video"). [7] The plaintiff claimed that the articles and videos contained defamatory material which were false and were published by the defendants maliciously with intent to injure the plaintiff’s reputation, trade and business. The impugned parts of the articles and videos and the imputations that arose were set out in the Statement of Claim and were carefully noted by the High 8 Court and the Court of Appeal in their respective judgments as published in the law journals at [2016] 7 CLJ 124 and [2018] 4 MLJ 209. [8] The defendants, on the other hand, claimed in their Defence that the words complained of or the impugned statements in the said articles and videos were not defamatory in nature of the plaintiff. The defendants principally relied on the defence of qualified privilege and fair comment. As for the defence of qualified privilege the defendants asserted in their arguments that they have exercised responsible journalism and/or in accordance with the defence of reportage. The defendants maintained that the said articles and videos were published pertaining to matters or issues of public interest not just in Raub but of a national scale. At the High Court [9] After a trial involving 15 witnesses, the learned trial Judge found that the words complained of in all the three articles and the two videos were defamatory of the plaintiff. The learned Judge also found that although the articles and videos in question were defamatory, the defendants had successfully raised or availed themselves to the defence of qualified privilege 9 which encompassed both the Reynolds privilege defence of responsible journalism and the defence of reportage. [10] In relation to the question of whether the matters complained of were defamatory, the learned Judge concluded as follows: “[16] It is therefore my judgment that the words complained of as stated by the plaintiff in paras. 8, 11, 17, 20 and 25 of the statement of claim are capable of being defamatory of the plaintiff in their natural and ordinary meaning. I agree with the plaintiff's learned counsel that the said articles and videos impute to the plaintiff dishonourable or discreditable conduct or motives or lack of integrity on part of the plaintiff of being unethical and greedy mining company. The plaintiff has therefore succeeded in proving, on the balance of probabilities, all the three basic elements of defamation. [17] I would further note that the evidence of the plaintiff's witnesses, particularly PW1, PW2 and PW3, showed that the concern of the residents of Bukit Koman to their health and safety as depicted in the said articles and videos turned out to be without merits and groundless. The use of sodium cyanide by the plaintiff for its carbon-in-leach plant did not at all caused any pollution as the plaintiff has exercised stringent safety and appropriate methods in mining gold. In fact it was in evidence that the various health issues suffered by most of the residents of Bukit Koman were due to traces of herbicides.” 10 [11] However, the learned Judge found that the defendants had successfully made out the defence of qualified privilege or more specifically the defence known as the Reynolds privilege as propounded by the House of Lords in Reynolds v Times Newspaper Ltd and Others [2001] 2 AC 127. The learned Judge noted that the Reynolds privilege has two prerequisites before the defendants can avail to it and they are firstly, that the publication concerned a matter of public interest; and secondly, that responsible and fair steps had been taken to gather, verify and publish the information. [12] On whether the two requisites were satisfied in respect of the articles and videos in question, the learned Judge observed: “[23] On the issue of public interest, I believe the question that needs to be asked and answered is whether there was a need at the material time for the public in general to know about the information published in the said articles and videos and that the defendants as newspaper and journalist were under a public duty to tell the public. In my opinion any matter or issue that concern the health, well-being and safety of a community is always a matter of public concern, not just to that particular community but also to the general public. The defendants through their witnesses, particularly DW1, DW4 and DW10, have shown that prior to the publication of the said articles and videos, there was already extensive coverage by the other media on the issue of gold mining activities using cyanide and that the issue was also raised even in the Pahang Legislative Assembly. In 2006 onward, news began to emerge on a national scale that the residents of Bukit Koman 11 started to raise protest on the use of cyanide in the plaintiff's gold mine. News articles began to be published in newspapers such as Nanyang Siang Pau, The Star, Utusan Malaysia, Sin Chew Daily and China Press surrounding the alleged use of cyanide in the plaintiff's carbon-in-leach plant in Bukit Koman. There was also legal proceedings by way of judicial review instituted by four members of the Bukit Koman residents in 2008 to challenge the environment impact assessment report pertaining to the mining and extraction of gold in Bukit Koman. The concern of the Bukit Koman's residents pertaining to the gold mining activity of the plaintiff has even led to the formation of the BCAC, a public interest group against the use of cyanide in gold mining. In the circumstances, I think there is clear evidence that issue pertaining to the concern of the Bukit Koman's residents about the operation of the gold mine in their town was clearly a matter of public interest. [24] The first article published in Malaysiakini website on 19 March 2012, as testified by DW2 (the second defendant), was sourced from the news appearing in websites on the internet, particularly Sin Chew Daily website and Nanyang Siang Pau website. DW7 and DW8 confirmed that the news items exh. D15 and exh. D16 respectively, were published on their respective newspaper's website. Exhibit D15 and D16 was about the concern of the villagers of Bukit Koman about air pollution caused by yellow substance floating in the air. DW2 also visited other blogs that spoke about the same subject matter. And finally, DW2 contacted and spoke to Wong Kin Hoong who was at the material time the Chairman of the Bukit Koman Anti-Cyanide Committee prior to the publication of the first article. Objection were taken by learned counsel for the plaintiff on the admissibility of exhs. D15 and D16. I see no merits in the objection taken by learned counsel. The two exhibits have been confirmed and verified by the editors of the two 12 newspapers, that is DW7 and DW8, and therefore the authenticity of the same cannot be doubted. [25] I am of the opinion that the first article merely reported the concern of the Bukit Koman's residents as to their health and the suspicion that the air pollution may be caused by the plaintiff's gold mining operation. Reading the first article as a whole, one will find that it made no allegations or criticism against the plaintiff. In other words, there is no embellishment of the contents of the first article by the first and second defendants. Much has been argued by learned counsel for the plaintiff that the first and second defendants have not verified the contents of the first article with the plaintiff or with other experts before publishing the same. However, in my opinion the act of the second defendant contacting the Chairman of the Bukit Koman Anti-Cyanide Committee prior to the publication of the first article was sufficient in the circumstances of this case to constitute responsible journalism. This is because the first article is not about the truth or otherwise of the contents therein but a report on the concern of the Bukit Koman residents regarding the air pollution which they suspect was caused by the plaintiff's plant. The defendants therefore have satisfied the test of responsible journalism. [26] As for the second article with link to the first video and the third article with link to the second video, it cannot be denied that these were reproduction of the two press conferences held on 21 June 2012 and 2 August 2012. There is no evidence that the first defendant as publisher of those articles and videos, the third defendant as author of the second article, the fourth defendant as author of the third article and DW3 as the videographer for the first and second videos adopted the contents of those articles and videos as their own. As I have alluded to, the said articles and videos are matter of public concern where the public in general has the right 13 to know the information and the defendants as media and journalists were under, at least a moral duty to publish the same. [27] Further, it is my judgment that the defence of reportage is clearly available to the defendants with regard to the publication of the second and the third articles and the first and second videos. It is not so much the truth of the contents of the said articles and videos that matters, but rather the fact that they were reproduction of the two press conferences held by BCAC, first on 21 June 2012 and, second on 2 August 2012. Malaysiakini and other medias 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 said articles and videos, but on the facts that they had been made. The two press conferences held by BCAC themselves, in my view, are matter of public interest. I am aware of the general principle that a person who repeats the defamatory words of another will also be liable to the person defamed. However, it has been said that the Reynolds privilege of reportage appears to be the exception to the so-called general rule of repetition. [28] The plaintiff's learned counsel submitted that the defendants have not specifically pleaded reportage in their defence and as such should not be allowed to rely on this particular defence. I merely wish to say that reportage is one form of the Reynolds privilege and it is considered part of the qualified privilege defence. The defendants have pleaded qualified privilege as one of their defences to the plaintiff's claim in paras. 33 and 35 of the defence. In my opinion that would be sufficient to enable the defendants to prove reportage at the trial of the action. I am also in agreement with learned counsel for the defendants that the case of Harry Isaacs & Ors v Berita Harian Sdn Bhd & Ors [2011] 3 CLJ 861; [2012] 4 MLJ 191 relied upon by 14 the plaintiff's learned counsel was decided based on the particular facts of that case.” [13] The learned Judge also went on to hold that the articles and videos were published in a fair, disinterested and neutral way and that the defendants did not adopt the allegations contained therein as their own. There was also no evidence of malice on the part of the defendants. Since malice was not proved, the claim for malicious falsehood cannot succeed. In the event, the plaintiff’s claim against all the defendants was dismissed. At the Court of Appeal [14] The appeal in the Court of Appeal turned on issues relating to the defence of reportage and the defence of responsible journalism or qualified privilege. The Court affirmed the dismissal of the claim for malicious falsehood but allowed the appeal against the dismissal on the claim for defamation and awarded the appellant the sum of RM200,000.00 in general damages. [15] As reported in Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 4 MLJ 209, the reasons for allowing the appeal were as follows (at the head-notes): 15 “(1) Although the trial judge was correct in finding that the information contained in the respondent’s articles and videos was a matter of public concern or interest, the respondents had not acted fairly and responsibly and could not rely on the defence of responsible journalism as they failed to meet the relevant ten-point test propounded in Reynolds. With regard to the first article, except for seeking confirmation from the residents of Bukit Koman through the chairman of the BCAC, the verification stopped there. The respondents made no attempts or efforts to contact other experts on the matter or to contact the appellant to get its side of the story. Merely contacting the chairman of the BCAC was grossly inadequate. The article made very serious allegations against the appellant and its tone was extremely accusatory and damaging. Due to the seriousness of the allegations, responsible journalism warranted a fair and balanced reporting where the appellant should have been given an opportunity to answer the accusations (see paras 29 & 38-40).

The nature of the information, and the extent to which the subject matter is a matter of public concern;

The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories;

The steps taken to verify the information;

The status of the information. The allegation may have already been the subject of an investigation which commands respect;

The urgency of the matter. News is often a perishable commodity 7. Whether comment was sought from the plaintiff. The plaintiff may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary;

Whether the article contained the gist of the plaintiff’s side of the story;

The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact;

The circumstances of the publication, including the timing.” 33 [43] As Lord Nicholls explained later in Bonnick v Morris [2003] 1 AC 300, these factors were necessary to provide the right balance between freedom of expression and reputation (at p 309): “Shortly stated, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege.” [44] So, how should the ten factors be assessed by the courts? As Lord Nicholls said in Reynolds, the list is not exhaustive but merely illustrative. A balancing operation must be carried out and the weight to be given to any of the factors will vary from case to case. They are certainly not ten hurdles or tests to be negotiated in the sense that if any one of them is not met, the defence fails. As Lord Hoffman said in Jameel, the indicia of ‘responsible journalism’ were not mandatory obstacles to be overcome. The standard of conduct required of a newspaper must be applied in a practical and flexible manner having regard to practical realities (see Jameel at [56]). 34 [45] In the same context as well, Lord Nicholls in Reynolds was at pains to reiterate (at p 205): “Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.” [46] Now, another aspect of the defence of publication in the public interest, which is relevant to the instant appeal, is the defence of reportage. Reportage, despite its fancy label, is really shorthand for neutral reporting of attributed allegations. It is reminiscent of privilege accorded to fair and accurate reports of parliamentary and court proceedings. This defence was first explored and applied in Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634; [2002] EMLR 215. [47] This defence was also raised in Anwar v NST, supra where the defence was summarised as follows: 35 “[74] As I had indicated earlier, the law allows reporting privileges through fair and accurate reports of parliamentary and court proceedings. The defendants here are relying on a more general privilege known as reportage. According to Gatley on Libel and Slander (11th Ed) this doctrine first surfaced in Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001] EMLR 13. Reportage in that case was depicted as 'a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper'. Since then reportage has been considered in a number of cases; Mark v Associated Newspapers Ltd [2002] EMLR 839; Galloway v Telegraph Group Ltd [2006] EWCA Civ 17; Jameel (Mohammed) v Wall Street Journal Europe Sprl [2006] 3 WLR 642; Roberts & Anor v Gable & Ors [2008] 2 WLR 129 and Charman v Orion Publishing Group Ltd [2008] 1 All ER 750. [75] In Roberts v Gale, Ward LJ described reportage as 'the neutral reporting without adoption or embellishment or subscribing to any belief in its truth of attributed allegations of both sides of a political and possibly some other [2010] 2 MLJ 492 at 520kind of dispute'. Significantly, Ward LJ also alluded to the relationship of the repetition rule with reportage cases. The repetition rule as set out by Lord Reid in Lewis v Daily Telegraph [1964] AC 234 at p 260 was that 'repeating someone else's libelous statement is just as bad as making the statement directly'. And that is what happens in reportage cases. However, Ward LJ held that the repetition rule and the reportage defence are not in conflict with each other. The former is concerned with justification, the latter with privilege. A true case of reportage may give the journalist a complete defence of qualified privilege. If the journalist does not establish the defence then the repetition rule applies and the journalist will have to prove the truth of the defamatory words (see Roberts & Anor v Gable & Ors at p 153). 36 [76] From a consideration of the cases cited, it can be safely asserted that reportage would normally apply as follows. It would only apply in cases where there is an ongoing dispute where allegations of both sides are being reported. The report, taken as a whole, must have the effect that the defamatory material is attributed to the parties in the dispute. The report must not be seen as being put forward to establish the truth of any of the defamatory assertions. This means that the allegations must be reported in a fair, disinterested and neutral way. The important consideration here is that the allegations are attributed and not adopted. Therefore reportage will not apply where the journalist had embraced, garnished and embellished the allegations.” [48] Since then, reportage came to be considered in Flood, supra where Lord Phillips PSC restated the defence of reportage in succinct terms: “… Reportage is a special, and relatively rare, form of Reynolds privilege. It arises where it is not the content of a reported allegation that is of public interest, but the fact that the allegation has been made. It protects the publisher if he has taken proper steps to verify the making of the allegation and provided that he does not adopt it. Jameel's case was analogous to reportage because it was the fact that there were names of substantial Saudi Arabian companies on the black list that was of public interest, rather than the possibility that there might be good reason for the particular names to 37 be listed. Just as in the case of reportage, the publishers did not need to verify the aspect of the publication that was defamatory.” [49] So, to surmise, the distinction between the two lies in whether the public interest is concerned with the fact that the statement is made and not the truth of its contents. This distinction was made clear by Lord Hoffman in Jameel as follows (at [62]): “In most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true, but there are cases ('reportage') in which the public interest lies simply in the fact that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth.” [50] To complete the narrative on the law, it is also necessary to state that the law in the United Kingdom has undergone further change. The defence of publication on a matter of public interest is now a statutory defence enacted in section 4 of the UK Defamation Act 2013. It replaces the common law defence of Reynolds public interest privilege. It may therefore be helpful to set out the whole section: “4 Publication on matter of public interest

(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and

(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.

It was common ground, as noted by the Courts below, that prior to the publication of these Articles and Videos in 2012, there was already extensive coverage by other news media such as Nanyang Siang Pau, The Star, Utusan Malaysia, Sin Chew Daily and China Press on the issue of the gold mining activities of the plaintiff using cyanide. The issue was also raised in the Pahang Legislative Assembly. [73] In fact, from 2006 onwards, further news emerged of the protests on a national scale by the Bukit Koman residents against the use of cyanide. There were also legal proceedings by way of a judicial review up to 2012 to challenge the Environment Impact Assessment Report pertaining to the mining of gold in Bukit Koman. A public interest group, Ban Cyanide Action Committee ("BCAC"), was also formed by the Bukit Koman residents to advocate against the use of cyanide by the plaintiff in their mining activities. [74] Coming now to the 1st Article, the findings of the learned High Court Judge were reproduced at para [12] earlier and can be summarized as follows: 54

(a) Prior to the publication of the Articles and Videos, there was already extensive media coverage of the gold mining activities and the threat to the health of the Bukit Koman community and that these were matters of public interest.

(b) The 1sl Article was sourced from the news which had appeared in the Sin Chew Daily and Nanyang Siang Pau websites as confirmed by the editors of these two websites at the trial.

(c) The 1st Article was also sourced from blogs which carried the same news.

(d) The 1st Article merely reported the concern of the Bukit Koman residents as to fears for their health and the suspicion that air pollution is caused by the plaintiff’s mining operation. It made no allegation or criticism against the plaintiff. There was no embellishment of the contents of Article 1 by the 1st and 2nd defendants.

(e) Verification of such news that was sought from Wong Kin Hoong, the then Chairman of the Bukit Koman Anti-Cyanide 55 Committee prior to the publication of the 1st Article was sufficient to constitute responsible journalism. This is because the 1st Article is not about the truth or otherwise of the contents therein but a report on the concern of the Bukit Koman residents regarding the air pollution suspected to have been caused by the gold mining activities. [75] Now, the Court of Appeal in respect of the 1st Article came to a different conclusion, the reasons for which were set out earlier (see para [15]). In summary, the Court took the view that there was no consideration of Lord Nicholls’ ten points in Reynolds. Although there was some verification before publication, the Court held that the verification sought with Wong Kin Hoong was insufficient. The Court felt that as no attempts were made by the defendants to try and contact other experts on the matter or to get a response from the plaintiff, the defendants had failed to act fairly and responsibly. [76] The Court also held that the tone of the 1st Article was extremely accusatory and damaging to the plaintiff. As the information was not verified, the defendants “cannot rely on the defence of responsible journalism since the respondents (defendants) had failed to meet the relevant ten (10) points test as propounded in Reynolds” (see para [40] of Court of Appeal Judgment). 56 [77] In respect of Articles 2 and 3 and the two Videos that accompanied them, the High Court had found that the Articles were a reproduction of two press conferences held on 21 June 2012 and 2 August 2012. The learned High Court Judge accepted that the defence of reportage was available in respect of both Articles and Videos as the public interest rested not in the truth of the contents but on the fact that that they had been made. [78] The Court of Appeal, on the other hand, apart from the pleading point as discussed earlier, held that the defendants had failed to show that in the ongoing dispute, they had reported the allegations in a fair, disinterested and neutral manner without embracing, garnishing and embellishing the allegations. The Court also observed that since the allegations were extremely serious and damaging, attempts ought to have been made to contact independent bodies such as the Department of Environment, the Department of Minerals and Geoscience or the Ministry of Health prior to publication. The Court also noted that the defendants should have contacted the plaintiff to get its side of the story so as to maintain balanced reporting. The Court went on to hold that the defendants were not entitled to avail themselves to the defence of reportage. 57 Analysis and Decision [79] After careful consideration of the judgments of the Courts below and the arguments of the parties, it is my respectful view that the decision of the Court of Appeal cannot be sustained for a number of reasons. For convenience, I will attempt to discuss the reasons under broad points and then relate them to the impugned publications. The Reynolds Ten Points [80] I think the case law as I had set out earlier is without controversy. The cases are replete with warnings that the ten points should not be treated as compulsory requirements that will have to be met before a successful plea of responsible journalism can be accepted. As mentioned earlier, they are not “hurdles to be cleared” (per Lord Bingham in Jameel) but must be applied in a practical and flexible manner having regard to practical realities (per Lord Nicholls in Bonnick v Morris, supra). In Tony Pua’s case, supra, in speaking for this Court, Azahar Mohamed FCJ (now CJ Malaya) reiterated that the ten points were explanatory only and served as guidelines with the weight to be given varying from case to case. 58 [81] It was therefore unfortunate for the Court of Appeal to come to a finding at para [40] of the Judgment that “the Respondents cannot rely on the defence of responsible journalism since the Respondents had failed to meet the relevant ten (10) points test as propounded in Reynolds.” This was further compounded when the Court had earlier at para [37] accepted the plaintiff’s criticism of the High Court Judgment that “there was absolutely no consideration of Lord Nicholls’ 10 tests…” [82] A perusal of the High Court Judgment, however, shows that the learned Judge was very much alive to the ten points and had considered it to be the critical issue. The learned Judge however considered, quite correctly, that the ten points were merely illustrative and a general guideline. So, it was erroneous for the Court of Appeal to accept the plaintiff’s arguments in this respect. [83] In the end, and as alluded to earlier, the learned Judge considered that the 1st Article was merely reporting the concerns of the Bukit Koman residents and their suspicion that the air pollution was caused by the plaintiff’s gold mining activities. The Court also observed, as noted earlier, that the 1st Article was not about the truth of the contents but only the concerns of the residents there. The learned Judge concluded that the defendants had satisfied the test of responsible journalism. 59 [84] Interestingly, although no arguments were put forward on this, given all the circumstances, a clear argument on the defence of reportage could also have been made out in respect of the 1st Article. It seemed to me, as the learned Judge found, that the 1st Article was only about the concerns of the residents and not whether their suspicions were true. Reading the Article as a whole, there certainly appeared to be no adoption or embellishment by the defendants. [85] As apparent from the case law discussed earlier, a defendant publisher could attempt to plead and prove both reportage and the general Reynolds privilege. They are both “publications in the public interest” defences. However, in view of the nature of the defences, in the sense that they are part of a spectrum of the same defence, it is more convenient to establish reportage first although it is sometimes possible for a careful publisher to be able to establish both. Of course, if he establishes reportage, that would be the end of the matter. [86] In the present case, the litigants have chosen to focus, as did the learned Judge, on the Reynolds privilege alone. Nevertheless, given that there was no adoption or embellishment by the defendants of the allegations in question, the finding of the High Court Judge of responsible journalism, as opposed to that of the Court of Appeal, is unassailable. The Court of Appeal was therefore, with 60 respect, wrong to interfere with the finding of the High Court with respect to the 1st Article. Verification [87] Now, the Court of Appeal was most concerned with the lack of verification of the allegations. The failure to verify was at the heart of the Court of Appeal’s refusal to accord the defendants the protection of Reynolds privilege as well as to some extent the defence of reportage. There were two aspects to this. The first was the criticism by the Court of Appeal that no opportunity was given to the plaintiff to respond. The second is that verification of the allegations should have been sought from independent experts. [88] With respect to the first aspect, there was a finding of fact by the High Court that as far as the 3rd Article was concerned, the 1st defendant did try to get a response from the plaintiff’s representative prior to the publication but he declined comment. Further, by its solicitor’s letter of 30 July 2012, the 1st defendant had offered the plaintiff a right of reply which it undertook to publish but the plaintiff did not respond and avail itself of the opportunity (see para [29] of High Court Judgment). 61 [89] It appeared that the plaintiff had taken the position that it would not comment on any of the stories in view of the judicial review application. It is apposite to observe that had the plaintiff given their version of the events, the defendants would have been obliged to publish the same. Even though seeking the claimant’s version is not a requirement in all cases, failure to publish the same if offered would count heavily against them and would almost certainly be considered as irresponsible journalism. [90] Now, the Court of Appeal had not adverted to any of these facts which were found by the High Court. So, in my respectful view, it was plain that the Court’s decision in this context is unsustainable as it arises from a misreading of the facts of the case and against a specific finding of fact by the trial Court. In Jameel, supra, it was held that a publisher would be acting reasonably when he had sought a comment but was ignored and thereafter proceeded to publish its story. It was also held in similar vein in Charman, supra at [91] that a unilateral libel reported disinterestedly will be equally protected. The reportage doctrine is not confined to the reporting of reciprocal allegations. [91] The next aspect was on the insistence by the Court of Appeal on independent verification by experts. This was no doubt prompted by the plaintiff’s approach in dealing with the verification issue as if it was a requirement of 62 establishing the truth of the complaints. The plaintiff maintained that the defendant was obliged to independently seek a scientific determination of the truth of pollution and health hazards from experts such as the Ministries of Health or Environment or the Geology Department. The Court of Appeal upheld this plea and held that this was detrimental to the defendants’ case as no attempt was made to contact such experts. [92] With respect, this aspect of the Court of Appeal’s decision, as a matter of law, is unsustainable in two respects. First, in cases of reportage, as long as there is no adoption and the defendant has engaged in neutral reporting, there is no requirement of verifying the truth of the allegations of an ongoing dispute (see Roberts, supra at [53]; Flood, supra at [77]). As observed earlier, unlike the general Reynolds defence, reportage is not about the truth of the statement but only that the statement was made. The classic case of reportage is that of a publication of two conceivably defamatory accounts by opposing parties locked in a dispute. In such cases, no verification of the truth of the allegations is required. Only an accurate and a balanced report of the allegations is necessary (see Prince Radu of Hohenzollern v Houston [2007] EWHC 2735 (QB) at [17]).The only qualification is that the Reynolds ten points have to be applied with the necessary adjustments in view of the special nature of reportage. 63 [93] In the present case, the defendants had, in any case, sought verification of the concerns of the residents from Wong Kin Hoong, who was the Chairmen of the Bukit Koman Anti-Cyanide Committee, who confirmed the fears of the residents. The defendants had also sought comments from the plaintiff on several occasions which were not forthcoming. However, in the 2nd Article, there was a reference to the comment by a Federal Minister and local Parliamentarian YB Ng Yen Yen that the gold mine was safe. There was a further reference to the State Local Government, Environment and Health Committee Chairperson Mr Hoh Khai Mun who told the State Assembly that the water was cyanide-free while the toxic chemical’s presence in the air is within limits. Considered as a whole, the only fair and reasonable conclusion is that the impugned Articles and Videos were an accurate, balanced and neutral account of the dispute. [94] Secondly, if any verification exercise is required to establish that the publisher or journalist has acted responsibly, it should not be burdensome or time consuming such that the urgency of the story is lost. As news is a perishable commodity as recognized in Reynolds, the urgency of a story is a factor to be taken into account especially in respect of an on-going story of public interest. It would unreasonable to expect a newspaper to undertake a 64 verification exercise with independent experts or engage its own experts before publishing a developing story of daily interest. [95] In the present case, the whole story about the fears arising from the plaintiff’s gold mining activities was already in the public consciousness. The evidence disclosed that since 1996, there were at least 26 news articles from various news media which reported the use of cyanide by the plaintiff. So, to now impose a burden on the media to engage independent experts prior to publication would not just be an onerous undertaking but also impractical as the function of the media is to report the news as it unfolds. [96] In this context, it is pertinent to recall what was stated earlier - “in deciding whether or not the criterion of responsible journalism has been met, the court should apply the standard of conduct expected of a journalist in a practical and flexible manner” (see Jameel at [140]). Further, the Reynolds ten points were not intended to present an onerous obstacle to the media in the discharge of their functions (see Charman, at [66]). [97] In my judgment, the Court of Appeal’s decision in rejecting the Reynolds privilege and defence of reportage on the ground that independent verification from experts should have been sought to verify the truth of the Bukit Koman residents’ complaints before publishing the story was, with 65 respect, inimical to the spirit of the Reynolds ten points. It is worth repeating that the ten points ought not to be treated as ten hurdles to be surmounted failing which the defence will fail. In the circumstances, the Court of Appeal, with respect, was wrong to interfere with the findings of the High Court with respect to the 2nd and 3rd Articles together with the related Videos. Tone and adoption of the Articles and Videos [98] The Court of Appeal came to the view that the articles in question were “not fair and neutral” with the defendants “garnishing and embellishing the allegations” and that it was couched in a “sarcastic” or “in an accusatory and damaging tone”. The Court then concluded that the defendants have “embraced and adopted” the complaints as the truth. [99] However, upon a plain reading of the impugned Articles themselves and the tone adopted therein, not even the most magnanimous exercise of the imagination can justify the interpretation given by the Court of Appeal. The Court probably fell into error by adopting the plaintiff’s description and interpretation of how the Articles were injurious to them. It is trite law that allegedly defamatory words are to be objectively assessed and not through the eyes of the complaining plaintiff or the meaning the plaintiff gives to the 66 words (see Raub Australian Gold Mining Ltd v Hue Shih Lee [2019] 3 CLJ 729 at para [45]). [100] In any case, as a matter of law, the tone of an impugned publication (as per Reynolds Point No. 9) need not be “bland and arid” but that it could be written “vigorously” (see Roberts, supra at [74]). A reportage defence is not lost even if a defendant publisher takes a perceptible pleasure in reporting the controversy or appears to sympathize with the case put forward by one party (see Prince Radu, supra at [19]). The reportage defence is only lost by embellishment by the journalist adding his own comments to give truth to the story (see Anwar v NST, supra; Datuk Harris Salleh, supra), [101] The Court of Appeal, in arriving at its decision, also commented on the impugned Articles asserting something sinister and also being biased against the plaintiff. On this score, the trial Court had found no malice on the part of the defendants. There appeared to be no reversal of this finding on appeal. In any case, it is doubtful whether a sinister motive or malice is relevant in the case of the defence of reportage (see Loutchansky v Times Newpapers Ltd (Nos 2-5) [2002] QB 783 at [34]). So, with respect, the Court of Appeal’s conclusion in this respect is unsustainable both in law and fact. 67 Conclusion [102] For all the cumulative reasons mentioned in the analysis above, the Court of Appeal plainly erred in its approach and in the reasons it gave for differing from the trial Judge and in setting aside the High Court decision. In my judgment, the High Court was entitled to come to the finding that in respect of the 1st Article, responsible journalism had been established and in respect of the 2nd and 3rd Articles and the related Videos, the defendants were entitled to avail themselves to the defence of reportage. The impugned Articles and Videos, although damaging to the plaintiff, were on a matter of great public concern, were balanced in content and tone, and critically, did not assert the truth of the allegations reported. [103] It is apposite to reflect that the High Court had a considerable advantage of having heard all the evidence through various witnesses over a period of time compared to the Court of Appeal which only had the benefit of the cold print of the Appeal Records. In such a case, an appellate court ought to only disagree with the trial judge’s assessment unless he/she has misunderstood the evidence, taken into account irrelevant factors or failed to take into account relevant factors or reached a conclusion no reasonable judge would have reached (see Jameel, supra at [36]). The upshot in the 68 present case, based on the preceding analysis, is that there were really no grounds for appellate intervention both in law and fact. [104] As a parting rejoinder, it must be said, and this is beyond dispute, that the press and the journalists play a crucial role in reporting matters of public interest and matters of serious public concern. In its role as a watchdog for the people, the awareness created by such media reports will by and large lead to greater protection of society as a whole. In carrying out this duty, the press may at times get the facts wrong. However, in matters of public interest, so long as the press hold a reasonable belief that the publication is in the public interest or that the publication is a fair, accurate and impartial account of a dispute, the press and journalists are entitled to the protection of the law. [105] A more emphatic pronouncement in this respect was made by Lord Nicholls in Reynolds which is worth repeating (supra at p 205): “Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. 69 The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.” [106] Applying the legal issues as adumbrated above to the established facts, the leave questions as set out at the outset should be answered as follows: Question 1: Question 2: Question 3: Question 4: Yes Question 5: Yes Question 6: Question 7: Yes Questions 8 and 9 need not be answered as they have become redundant in view of the answers to Questions 1-7. 70 [106] My learned brother Vernon Ong Lam Kiat FCJ has read this judgment in draft and has expressed agreement with it. In the result, the appeal is allowed with costs to the appellants. The orders of the Court of Appeal are hereby set aside and the orders of the High Court restored. Dated: 02 July 2021 Signed (HARMINDAR SINGH DHALIWAL) Judge Federal Court of Malaysia Counsel/Solicitors: For the Appellants: Cyrus Das, James Khong, Syahredzan Johan, and Edwin Lim Chear Win (M/s James Khong) For the Respondents: Cecil Abraham, Sunil Abraham, Noor Muzalifah Shabudin and Anne Sangeetha Sebastian (M/s Cecil Abraham & Partners)