The Federal Court recently released its grounds for the Malaysiakini v Raub Australian Gold Mine decision. The 5 Judges were split almost down the middle, with 3 judges dismissing the appeal and 2 allowing it.
I have read the decisions and the attendant English cases. Regrettably, I am of the opinion that the majority bench has fallen into error. The minority judgment appears to have correctly corralled the law.
Background to the dispute
The High Court proceedings [2016] 12 MLJ 476
Malaysiakini (“MK”) ran several reports regarding the operations of the Raub Australian Gold Mine (“RAGM”). The gist of the articles and videos run by MK were that RAGM’s operations utilised cyanide and were causing health issues to the surrounding residents.
RAGM sued MK (and its editors and journalists) for defamation and malicious falsehood. In its defence, MK raised Reynolds privilege (i.e., a form of qualified privilege wherein a defence is available if [1] the publication concerns a public interest and [2] reasonable steps have been take to verify the information).
The matter went for full trial. In its closing submissions, MK raised reportage as a limb of its defence (which it had not specifically pleaded). Reportage is essentially a defence of neutral reporting (i.e., merely reproducing defamatory words as a means of reporting on events).
The High Court found that the articles were defamatory. However, the High Court Judge held that the defences of reportage and responsible journalism were ascribed to MK:
[33] It is therefore my judgment that based on the reasons stated, the defendants have succeeded in their defence of qualified privilege, that is responsible journalism and reportage — the Reynolds privilege. Malice was also not proven. On these grounds, the plaintiff’s claim against the defendants ought to be dismissed. There is no necessity for me to deal with the defence of fair comments.
The Court of Appeal [2018] 4 MLJ 209
MK did not appeal against the HCJ’s finding that the articles were defamatory. RAGM appealed against the finding that MK were afforded the defence of reportage and responsible journalism.
At the CoA, the HCJ’s decision was overturned vis-à-vis the defence of reportage and responsible journalism. The CoA held that reportage was a specific defence that must be pleaded. The CoA held that the failure to specifically plead the words “reportage” would disable MK from raising it as a defence:
[63] From the cases above, it can be concluded that reportage is in essence a defence of qualified privilege. In fact, it is treated ‘as a form of, or a special example of Reynolds privilege, a special kind of responsible journalism but with distinctive features of its own’. Even though it is distinct in its features, it still, as stated in para 61(6) of the illustration by Ward LJ in Roberts & another, has ‘to fulfil the ten factors listed by Lord Nicholls, adjusted as may be necessary, for the special nature of reportage, in order to reach the necessary conclusion that this was the product of responsible journalism’. Therefore, though reportage emanates from the same product (responsible journalism), due to it having its own distinctive, special features, we are of the view that it has to be treated as a distinct and separate defence from responsible journalism or qualified privilege.
[65] It is trite law that a defendant is precluded from relying on a defence which was not specifically pleaded in its defence…
[66] The trial judge allowed the respondents to raise the defence of reportage in their submission at the post-trial stage even though the respondents had not specifically pleaded the defence of reportage in their defence. As such, this defence was not within the contemplation of the parties. The fact that it is not within the contemplation of the parties is unfair and prejudicial to the party against whom such a defence is levelled.
The Federal Court
MK took the matter to the Federal Court. At the Federal Court, 9 legal questions were posed. The same may be distilled to the following:
1. Was reportage a discrete defence that would have to be specifically pleaded, or would it be a subset of Reynolds privilege?
2. Are reportage and Reynolds privilege mutually-exclusive or could they be pleaded in the alternative?
3. Would a wound-up entity be entitled to general damages?
The undercurrent to this appeal
On the surface, the appeal appears relatively benign. However, as with any case involving the media, there was (and continues to be) an undercurrent grappling with the issues of press freedom and the right to free, unbiased reporting.
Reductionism at its finest: The majority decision
Both the minority and majority judgments dealt with 4 notable decisions of the English courts, namely:
· Reynolds v. Times Newspapers Ltd and Others [1999] UKHL 45
· Jameel & Ors v. Wall Street Journal Europe Sprl [2006] UKHL 44
· Roberts & Anor v Gable & Ors [2007] EWCA Civ 721
· Flood v Times Newspapers Limited [2012] UKSC 11
Rather unfortunately, the majority judgment were of the opinion that reportage and Reynolds privilege are discrete. They would have to be specifically pleaded and a failure to do so would mean that MK could not avail itself of the defence.
Reportage and Reynolds privilege were also deemed mutually-exclusive; they could not be pleaded in the alternative (the rationale being that disinterested, neutral reportage must be distinguished from Reynolds privilege, where a reporter may insert her opinion with a genuine belief in the same).
The majority decision
An analysis of the majority decision indicates that the judges took a view that reportage and responsible journalism were mutually-exclusive:
[27] Thus, having regard to the material differences in the defining characteristics of reportage and the Reynolds defence of responsible journalism and the different consequences that flow from their breaches, the two defences must be treated as mutually exclusive. The Court of Appeal was therefore correct in holding that the defence of reportage must be specifically pleaded as it is distinct and separate from the Reynolds defence of responsible journalism.
[28] The learned trial judge was wrong on the other hand to accept the unpleaded defence of reportage, which was only raised by the appellants in their closing submissions. The learned judge should only have proceeded to consider the pleaded Reynolds defence of responsible journalism or qualified privilege.
The majority also placed reliance on the speech of Lord Bingham in Jameel, supra.
With respect, the reliance on Lord Bingham’s speech in Jameel may have been misplaced. Lord Bingham was firmly of the view that reportage would also serve as a defence:
62. Telling the jury to make that assumption was, as the Court of Appeal decided (at para 59), a misdirection. The fact that the defamatory statement is not established at the trial to have been true is not relevant to the Reynolds defence. It is a neutral circumstance. The elements of that defence are the public interest of the material and the conduct of the journalists at the time. 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. In either case, the defence is not affected by the newspaper's inability to prove the truth of the statement at the trial.
The majority also placed reliance on the CoA decision of Gable, supra to assert that reportage and Reynolds-privilege were discrete. Again, this is regrettably misconceived.
Gable dealt with an article that had purportedly libelled the Claimant. The only defences advanced were justification and qualified privilege:
2. The defendants advanced two defences to this claim, justification and qualified privilege.
At trial, the HCJ upheld the defence and dismissed the claim. The CoA noted that “The appeal gives rise to important issues about the operation of the so-called Reynolds' and reportage defences.”
The CoA in Gable went on to note that “Reportage is a fancy word. The Concise Oxford Dictionary defines it as "the describing of events, esp. the reporting of news etc. for the press and for broadcasting." It seems we have Mr Andrew Caldecott Q.C. to thank – or to blame – for its introduction into our jurisdiction. The doctrine first saw the light of day in Al Fagih. Simon Brown L.J. said in paragraph 6 that it was "a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper." That may indeed conveniently describe what it is but there is more to it than that and it is necessary to see how this new doctrine fits into the firmament.”
The “firmament” referred-to was the firmament of Reynolds-privilege. Reportage was not meant to be a standalone defence and it was always firmly a subset of Reynolds-privilege.
The CoA emphasised as follows:
Reportage and Reynolds' qualified privilege
60. Once reportage is seen as a defence of qualified privilege, its place in the legal landscape is clear. It is, as was conceded in Al-Fagih a form of, or a special example of, Reynolds' qualified privilege, a special kind of responsible journalism but with distinctive features of its own. It cannot be a defence sui generis because Reynolds is clear authority that whilst the categories of privilege are not closed, the underlying rationale justifying the defence is the public policy demand for there to be a duty to impart the information and an interest in receiving it (see p. 194 G). If the case for a generic qualified privilege for political speech had to be rejected, so too the case for a generic qualified privilege for reportage must be dismissed
In fact, the Supreme Court in Flood made it apparent that reportage was not a specific defence:
35. The nature of reportage was extensively analysed by Ward LJ in Roberts v Gable [2007] EWCA Civ 721; [2008] QB 502. At para 60 he correctly identified it as a special example of Reynolds privilege, “a special kind of responsible journalism but with distinctive features of its own”. There is a danger in putting reportage in a special box of its own. It is an example of circumstances in which the public interest justifies publication of facts that carry defamatory inferences without imposing on the journalist any obligation to attempt to verify the truth of those inferences. Those circumstances may include the fact that the police are investigating the conduct of an individual, or that he has been arrested, or that he has been charged with an offence.
All of the above clearly points to the fact that reportage is NOT a standalone defence. It is a subset of Reynolds-privilege and is to be treated as such. It need not have a specific plea and if anything, Gable makes that absolutely clear.
The minority decision takes a broad-based approach
The dissenting minority view though, bodes well for a pluralistic, modern society. The minority judgment analysed a large body of case law from several jurisdictions and concluded that Reynolds-privilege and reportage were NOT mutually-exclusive:
[56] Having dealt with the law, it may be convenient at this juncture, to now come to the first issue raised in the appeal which is whether reportage is in law a separate defence from the Reynolds defence of responsible journalism and whether it is mandatory for the two defences to be pleaded separately. Allied to this issue is whether the two defences can be pleaded in the alternative.
[59] On this question, I would say at once, and with respect, that the Court of Appeal was wrong both on the issue of substantive law and on the requirements of pleading as was set out earlier. In my respectful view, reportage is not a distinct and separate offence from responsible journalism or qualified privilege generally. It is part of the Reynolds family of public interest privilege or responsible journalism. It is not a defence sui generis as underpinning both defences is the public policy of the duty to impart and receive information as reflected in the leading cases on reportage such as Jameel, Flood and Roberts and another v Gable and Others [2008] 2 WLR 129 (“Roberts”)
The minority judgment went on to correctly determine that pleadings need only set-out the factual narrative:
[67] It has never been the law of pleadings that the actual legal term be used if the facts and circumstances warranting the defence are set out (see Re Vandervell’s Trusts (No 2) [1974] EWCA Civ 7; [1974] Ch 269). In other words, it is only necessary to plead the material facts and not the legal result. The legal consequences permitted by the material facts can be presented in argument. The principle of pleadings, it should be recalled, is to put the opposing party on notice as to one’s case so as to promote fair and efficient litigation. If there is any doubt, parties are at liberty to seek further and better particulars.
The minority judgment held that the Court of Appeal had fallen into serious error. Appellate intervention was not warranted and there had been a serious misapprehension of the law.
The minority judgment noted the important role that the media plays:
[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.
Legal ramifications of the majority judgment
As a result of the majority judgment, reportage is now deemed a mutually-exclusive defence. It is discrete from Reynolds-privilege and both cannot be pleaded in the alternative.
The decision of the majority is, with respect, a manifest divergence from the development of the law in the UK and a majority of Commonwealth jurisdictions. Parties to a dispute will now have to be very careful with what is or is not pleaded, much to the detriment of the actual factual dispute at-hand.
The undercurrents of press freedom and the ability of the media to issue free and fair reporting has suffered, as a result of the decision. It is hoped that this matter may be revisited by the Federal Court, with Parliamentary intervention being a potential remedy (much like the UK, which enacted the Defamation Act 2013).
Moving forward
The only manner in which the law may move forward (and by extension, propel press freedom and the country forward) would be to either have:
i. the Federal Court revisit this decision; or
ii. for Parliament to legislate.
The UK has taken the route of Parliament legislating defences. Reynolds privilege has been specifically abrogated by the Defamation Act 2013, with a simplified defence that bodes well for press freedom being preferred.
The best way forward for Malaysia would be for Parliament to get its act together (pun intended) and to legislate. However, given the reticence vis-à-vis convening, this route may be cut-off for the foreseeable future.
It is hoped that a fresh panel of the Federal Court may be occasioned the privilege (pun again intended) to revisit this new and developing field of law. For the state of affairs to stand as-is would be terribly dissatisfying; there is a clear and present divergence from the actual UK position and press freedom is greatly threatened. For the press to be muzzled and constantly on-guard as against litigation would be the death knell for free, unbiased and investigative journalism in this country.
GAVIN JAYAPAL
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