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Lynas fails to gag SMSL

 | July 26, 2012

The judge orders the rare earth miner to pay RM5,000 in costs

KUALA LUMPUR: Australian rare earth miner Lynas has failed in its bid to stop the Save Malaysia Stop Lynas (SMSL) pressure group from continuing to publish information that it deems defamatory.

The High Court today dismissed its application for an injunction against SMSL and ordered it pay RM5,000 in costs.

Delivering the decision before a courtroom packed with SMSL supporters, Judge John Louis O’Hara ruled that he could not grant the injunction based on the evidence produced by the plaintiffs.

The application came with a defamation suit that Lynas Corporation Ltd and Lynas Malaysia Sdn Bhd filed on April 19 against SMSL Sdn Bhd and its directors Tan Bun Teet and Lim Sow Teow.

O’Hara said he could not conclude, from Lynas’ affidavit, that the defence of fair comment and qualified privilege would fail to stand during the full trial of the suit.

“I am not satisfied that the affidavit evidence before me is sufficient to convince me that the defence will fail in trial,” he ruled. “I find this case in favour of the defendants.”

O’Hara also took judicial notice on the question of public interest, saying “the public has a prima facie right to be informed”.

The article in contention, “Civil Society Organisations’ joint statement on Lynas issue: SMSL & NGOs statement against Lynas”, is posted at SMSL’s website.

Lynas claimed it contained statements that were “false”, “damaging” and “defamatory” and asked the court to order the defendants to remove it until the disposal of the suit.

Lynas’ lawyer, Rishwant Singh, noted in his submission that the defendants had relied on fair comment in their defence statement. He argued that fair comment must be based on factual matter.

Expert views

SMSL’s lawyer, Bastian Pius Vendargon, argued that the article was based on expert views and reports, as well as reports from witnesses whom the defendants would produce during the trial.

He submitted that the right to freedom of speech under Article 10 of the Federal Constitution would not easily permit the granting of injunctions to restrain that right.

Lynas also brought a similar case against FMT. However, it has dropped the suit following an out-of -court settlement.

The suit against SMSL has been fixed for case management on Aug 14.

Meanwhile, Bastian said the court’s decision today is a “victory for freedom of speech”, noting that the judge had rightly recognised the constitutional rights.

He said the SMSL will be applying for the defamation suit to be heard in the Kuantan High Court.

He also said that he would be filing another application for a court order to obtain certain documents that Lynas is refusing to release to his clients.

Reacting to the decision, a crowd of some 50 SMSL supporters cheered outside the court.

Said Tan: “This is a small victory for us and is an indication of a good start for the civil movement. When we have no ulterior motives but for the people’s interest, we should not be muzzled. When the trial starts, we will further demonstrate that whatever we’ve commented on Lynas are truly facts.”


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