The apex court unanimously ruled that the words under Section 233 of the CMA, which criminalised the online transmission of offensive comments, were constitutional.
Justice Nallini Pathmanathan said free speech was still subject to limitations and that the provision aimed to regulate the improper use of network facilities and services, with a view to providing a safe online environment.
“We reverse that part of the Court of Appeal’s judgment that struck out the words ‘offensive’ and ‘annoy’ from Section 233(1)(a) of the CMA for being inconsistent with Article 10(1)(a) of the Federal Constitution,” she said, in allowing part of the government’s appeal.
Chief Justice Wan Ahmad Farid Wan Salleh and Justices Che Ruzima Ghazali, Nazlan Ghazali and Collin Lawrence Sequerah were also on the bench that heard the appeal.
However, the apex court affirmed the Court of Appeal’s decision that there was no basis to prosecute activist Heidy Quah on the grounds that a Facebook post she had made was “offensive” and communicated “with intent to annoy”.
Quah, the founder of Refuge for Refugees, was charged in July 2021 under Section 233, prior to its amendment, with posting offensive online comments on Facebook after highlighting the alleged mistreatment of refugees at immigration detention centres.
Section 233 of the CMA had made it an offence for anyone to make, create, solicit or initiate the online transmission of “obscene, indecent, false, menacing or offensive” comments with the intent to “annoy, abuse, threaten or harass another person”.
In April 2022, the High Court granted her a discharge not amounting to an acquittal.
Quah then sought a declaration that the words “offensive” and “annoy” in the provision were invalid and contravened two fundamental rights safeguarded by the constitution.
On Aug 27 last year, the Court of Appeal unanimously struck down the section, ruling that it violated Articles 8 and 10(2)(a) of the constitution.
Article 8 provides for equality before the law, while Article 10(2)(a) permits certain limitations to free speech.
The appellate court ruled that the act of offending and annoying a third party could not be construed as going against public order.
The government’s appeal revolved around three legal questions, including whether the Court of Appeal’s ruling was consistent with Article 4(2) of the Federal Constitution.
Article 4(2)(b) prohibits any challenge to speech restrictions made in the interests of public order and public morality pursuant to Article 10(2).
In 2024, the government passed an amendment to Section 233 of the CMA, raising the threshold for offences from “offensive” to “grossly offensive”. The amendment came into effect in February last year.
Right to freedom of speech not absolute
In delivering the apex court’s broad grounds, Nallini said the right to freedom of speech and expression was not absolute and excluded communications which are harmful in character, especially in Malaysia’s plural society.
“What does not fall within the purview of free speech and expression is communication with the intent of causing harm or injury to another individual or group of persons,” she said.
The judge said the words “offensive” and “annoy” in the CMA were to be understood in the context of a rise in various forms of online harassment, doxxing, malicious pranks, hoaxes and content which were racist, or attacks religious sensitivities in a derogatory manner.
“In other words, Section 233(1)(a) of the CMA targets communications that fall outside the purview of the freedom of speech and expression.
“Therefore, it does not have the effect of infringing on the right guaranteed under Article 10(1)(a),” she added.
Senior federal counsel Shamsul Bolhasaan had submitted that Article 4(2)(b) prohibits challenges to speech restrictions made in the interests of public order and public morality.
Senior federal counsel Liew Horn Bin assisted Shamsul while counsel Benjamin Dawson represented the Malaysian Communications and Multimedia Commission.
Lawyer Malik Imtiaz Sarwar represented Quah and lawyer K Shanmuga appeared for the Malaysian Bar.