Malaysiakini’s RM550,000 gold-mine case: why reportage is not a free pass

On 2 July 2021 the Federal Court, by a majority of three to two, dismissed the final appeal of the online news portal Malaysiakini in a defamation suit brought by a gold-mining company. The portal was left with a bill of RM550,000: RM200,000 in damages and RM350,000 in legal costs. More lasting is the legal point. The court drew a firm line between two defences that many publishers, bloggers and page administrators assume are the same thing: responsible journalism and reportage.

A village campaign, three articles and two videos

Raub Australian Gold Mining Sdn Bhd (RAGM) operated a gold mine at Bukit Koman in Raub, Pahang, using a cyanide-based process. Residents campaigned against the operation, saying that it was harming their health and the environment.

In 2012 Malaysiakini, which publishes only online, carried three articles and two videos of residents’ press conferences. According to the judiciary’s press summary of the minority judgment, the articles were dated 19 March, 21 June and 2 August 2012 and covered villagers’ fears about pollution, a residents’ health survey and a planned rally against the mine.

RAGM sued the portal’s operating company, Mkini Dotcom Sdn Bhd, and three members of its editorial staff for defamation and malicious falsehood, a related claim concerning false statements published with malice. In June 2016 the High Court dismissed the suit, accepting the portal’s defence of qualified privilege. In January 2018 the Court of Appeal reversed that decision and awarded RM200,000 in general damages, holding that reportage had not been properly pleaded and that the allegations had not been adequately verified.

Two defences that sound alike

Qualified privilege protects a publisher who turns out to be wrong, provided the occasion of publication deserves protection and there was no malice. One modern branch comes from the English case of Reynolds v Times Newspapers Ltd. A publisher reporting on a matter of public interest may be protected even if the allegation cannot be proved true, as long as it took reasonable steps to verify the story and to obtain the other side’s response. This is usually called responsible journalism.

Reportage is narrower. It protects the neutral reporting of the fact that allegations were made in a dispute of public interest, without the publisher adopting them as its own. The focus is on neutrality rather than verification.

The Federal Court granted leave to appeal on eight questions. They centred on whether reportage is a separate defence from Reynolds privilege, and on how it must be pleaded (set out in the defence filed in court).

How the Federal Court divided

The majority judgment was delivered by Abdul Rahman Sebli FCJ, with Zaleha Yusof and Hasnah Mohammed Hashim FCJJ agreeing. The majority held that the two defences are distinct and, in its view, incompatible: one turns on verification, the other on neutrality. Reportage must therefore be specifically pleaded and cannot simply be run alongside responsible journalism as an alternative.

On the facts, the majority found that the publications were not neutral and that the portal had not attempted adequate verification or obtained responses from the relevant authorities. Linking the press-conference videos to one-sided articles was treated as adopting the allegations.

Harmindar Singh Dhaliwal FCJ dissented, with Vernon Ong Lam Kiat FCJ agreeing. The minority regarded reportage as a member of the same family of public-interest privilege, which need not be separately pleaded. They saw the Reynolds factors as flexible guides rather than a series of hurdles, thought it unrealistic to demand scientific verification of a developing community-health story, and noted that the portal had offered the company a right of reply. They would have restored the High Court’s dismissal of the suit.

The Court of Appeal’s award of RM200,000 stood, together with costs of RM150,000 for the Court of Appeal stage and RM200,000 for the Federal Court stage. The Federal Court is the apex court, so the decision is final.

Why the ruling reaches beyond newsrooms

In Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee the Federal Court held in 2015 that Reynolds privilege is not confined to journalists, but that anyone relying on it must meet the responsible-journalism standard. A blogger, a residents’ association page or a citizen journalist has the same defence and carries the same burden. And because repeating an allegation is publishing it, saying that one only passed on what others said is not, by itself, a defence.

Nor does the case shut down public-interest speech, for which Article 10(1)(a) of the Federal Constitution is the backdrop. In Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee, decided by the Federal Court on 13 February 2019, the same company failed in its claim against a Bukit Koman resident who had voiced the community’s concerns. The different outcomes turned on what each publication actually conveyed, on proof of who said what, and on the defences run.

Section 12 of the Defamation Act 1957 gives newspapers a qualified privilege for certain reports, but the defences argued here were common-law ones. In a speech published by the judiciary in 2023, Harmindar Singh Dhaliwal FCJ observed that the Act has never been amended to deal with the internet.

Practical takeaways for anyone who posts about a business

• Before publishing a serious allegation about a company, ask the company for its response, keep proof that you asked, and publish the reply.

• Check with the relevant regulator or authority where you can. That residents or customers said something is not verification; bloggers and page administrators are held to the same standard as journalists.

• If you are only reporting that an allegation has been made, stay neutral: attribute it, do not adopt or embellish it, and give the other side.

• Headlines, captions and embedded videos are read together with the article. A neutral text under an accusatory headline is not neutral.

• Costs can exceed damages: here, RM350,000 in costs against RM200,000 in damages.

Authorities and sources

• Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd [2021] 5 MLRA 37 (Federal Court, 2 July 2021)

• Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187 (Federal Court)

• Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 2 MLRA 345; [2019] 3 MLJ 720 (Federal Court)

• Reynolds v Times Newspapers Ltd [2001] 2 AC 127

• Defamation Act 1957, section 12; Federal Constitution, Article 10(1)(a)

• Malaysian judiciary, press summary of the minority judgment, 2021; speech on defamation issues by Harmindar Singh Dhaliwal FCJ, 29 September 2023

• Free Malaysia Today, 2 July 2021; Malay Mail, 2 July 2021

This article is general legal information only and is current as at 19 September 2026. It is not legal advice and does not create a solicitor-client relationship. Court decisions may be appealed and the law may change; please seek advice on your own circumstances. — Chris & Partners, Advocates & Solicitors