Federal Court reserves judgment on Malaysiakini's appeal

A five-member panel chaired by Justice Datuk Vernon Ong Lam Kiat decided to reserve judgment after hearing lengthy submissions from Malaysiakini's counsel Datuk Dr Cyrus Das and Tan Sri Cecil Abraham for RAGM, via online proceeding due to the Conditional Movement Control Order (CMCO).

“We thank both counsels for the comprehensive written and oral submissions. We need time to digest (the submissions) so we will advise the parties once the grounds of our decision are ready,” said Justice Vernon.

Presiding with him were Federal Court judges Datuk Abdul Rahman Sebli, Puan Sri Zaleha Yusof, Datuk Seri Hasnah Mohammed Hashim and Datuk Rhodzariah Bujang.

On Jan 11, 2018, the Court of Appeal reversed a Kuala Lumpur High Court decision and ordered Malaysiakini and three other defendants, who were members of the editorial staff, to pay RM200,000 in damages and RM150,000 in legal costs.

The Court of Appeal had found that the three articles and two videos published in 2012 in relation to the gold mining activities of RAGM were unbalanced and one-sided as they did not carry responses from the Department of Environment, the Health Ministry and the Land and Mines Department.

On May 23, 2016, the High Court dismissed RAGM’s claim against Malaysiakini and the other three defendants.Earlier, Cyrus submitted that the articles and videos were published based on information and extracts which were sourced from other news publications, various blogs and reproductions of two press conferences which were called by the Ban Cyanide Action Committee (BCAC) formed by the Bukit Koman residents against the use of cyanide by RAGM in their mining activities.

“The Court of Appeal also failed to have regard to the evidence that at the outset, the appellants attempted to contact the representatives of the respondent for their comments prior to publications concerning the respondent's gold-mining activities. The respondent consistently refused or avoided contact and communications with the appellants.

“Given that all the articles and videos are of public interest, the appellants, therefore, published the same without the comments of the respondent as the opportunity had been given but declined by the respondent. The Court of Appeal, however, misread the evidence and held that there was a failure of verification to the extent that the defence of responsible journalism was denied,” said Cyrus.

Meanwhile, Cecil submitted that the articles and videos bear an accusatory tone, which leans in favour of giving wide political coverage of politicians from the opposition (at that time) and the BCAC's unverified and false assertions.

He further submitted that it was apparent that the appellants have functioned as nothing more than a blog, publishing untruths in the hope of securing a large readership and attention to their articles by using sensational and entirely inaccurate information.

“I would respectfully submit my lords and ladies that this case is one of the worst cases of irresponsible journalism. On the issue of verification, my learned friend (Cyrus) suggested to my lords and ladies that there was verification. With the greatest respect, there is in fact no verification.

“My learned friend said they asked Mr Andrew Kam (RAGM chairman and chief executive officer, Datuk Seri Andrew Kam), that was in respect of the judicial review proceedings which were pending before the court and because of that reason, Mr Andrew Kam did not want to comment,” he said, hoping that this appeal would be dismissed with costs.