The Federal Court has unanimously ruled that the words ‘offensive’ and the intent to ‘annoy’ in Section 233(1)(a) of the Communications and Multimedia Act 1998 (CMA) are constitutional, reinstating key provisions governing online communications.
The five-judge panel, led by Chief Justice Datuk Seri Wan Ahmad Farid Wan Salleh and comprising Tan Sri Nallini Pathmanathan, Datuk Che Mohd Ruzima Ghazali, Datuk Mohd Nazlan Mohd Ghazali and Datuk Collin Lawrence Sequerah, partly allowed the Malaysian government’s appeal against an earlier Court of Appeal decision.
Section 233 makes it an offence to create or transmit online content that is obscene, indecent, false, menacing or offensive with the intent to annoy, abuse, threaten or harass others.
Last year, the Court of Appeal struck down portions of the provision, ruling that the terms violated constitutional guarantees, including equality before the law under Article 8 and limits to free speech under Article 10(2)(a). The government subsequently challenged the ruling following a lawsuit initiated by activist Heidy Quah.
Delivering the judgment, Nallini said the provision was designed to regulate improper use of network facilities and services to ensure a safe digital environment. She emphasised that freedom of speech and expression under Article 10(1)(a) must be protected but is subject to lawful restrictions.
“The section targets communications that fall outside legitimate free speech and aims to protect individuals and communities from harm arising from misuse of online platforms,” she said, adding that publicly funded communication networks require safeguards against abuse.
However, the Federal Court upheld the Court of Appeal’s finding that there was no basis to prosecute Quah over her Facebook post regarding Covid-19 conditions at immigration detention centres, as it contained factual information and opinions protected by constitutional rights.
Nallini noted that removing the disputed terms would have weakened authorities’ ability to regulate intentionally harmful communications, potentially exposing users to harassment and online abuse.
-THE MALAYSIA VOICE
