Why we appeal to you is why we will appeal
FMT’s response to the decision of the Penang High Court yesterday
(Free Malaysia Today) – Yesterday was a difficult day for us at FMT.
As has been widely reported, judgment was entered against us in the Penang High Court in respect of a news report which we carried on December 6, 2013.
In compliance with the order of the court, we immediately retracted the impugned news report. As a result, you will no longer find it on our site.
The report concerned a press conference at which a renowned and highly qualified architect, Professor Jimmy Lim, well-known for his passion for Penang’s heritage, lamented the state of heritage in Penang and called for the State Government to tighten its regulatory mechanisms to ensure that Penang’s UNESCO heritage status is preserved.
FMT, as any online news portal would do, carried his comments on the very day of the press conference, all in the form of allegations attributed to the speaker, and in what we would consider a neutral reporting style.
The Chief Minister of Penang sued Jimmy Lim, FMT and journalist Athi Shanker, claiming that the article defamed him by alleging that he was among other things an incompetent chief minister.
Judicial Commissioner Nordin Hassan found in his favour, construing the article as defamatory of the chief minister and further holding that the defendants’ defences of justification, fair comment and qualified privilege, had failed.
With all due respect, we disagree with the construction placed by the court on the news report in question. It is a matter which we will take up, not here, but at the proper forum on appeal.
In the course of delivering his decision, the trial judge also appeared to attribute to FMT the defences of justification and fair comment, which he claimed all the defendants failed to prove. Here, we wish to point out that justification and fair comment were not defences which we had put up in the case. It is again a matter which we do not intend to delve into here.
Our defence was purely qualified privilege. Specifically, it was that the news report which we published consisted of mere reportage and nothing else.
In essence, “reportage” is “a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by [a] newspaper”.
Under the defence of reportage as we understand it, a publication can still be privileged despite the reporter not having taken steps to verify the report with the party who had claimed to have been defamed.
That is the principle on which modern journalism functions. Yesterday, that principle may have been turned on its head.
Nordin JC appears to have found that our report was malicious merely because its contents had not been verified with the plaintiff prior to publication.
That decision may have serious implications.
