FEDERAL COURT RULES WORDS “OFFENSIVE” AND “ANNOY” UNDER SECTION 233 OF COMMUNICATION AND MULTIMEDIA ACT CONSTITUTIONAL

PUTRAJAYA, Feb 6 (Bernama) — The government today succeeded in its appeal to reinstate the words “offensive” and “annoy”, under Section 233 (1) (a) of the Communications and Multimedia Act 1998 (Act 588) (CMA), after the Federal Court ruled that the terms are constitutional.

Section 233 (1) (a) criminalises any online communication which is obscene, indecent, false, menacing or offensive in character with the intent to annoy, abuse, threaten or harass another person.

A five-member bench comprising Chief Justice Datuk Seri Wan Ahmad Farid Wan Salleh, Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Che Mohd Ruzima Ghazali, Datuk Mohd Nazlan Mohd Ghazali and Datuk Collin Lawrence Sequerah, partly allowed the government’s appeal to overturn the Court of Appeal’s earlier ruling, which had declared the two words unconstitutional.

Delivering the court’s unanimous landmark decision, Justice Nallini said the purpose of Section 233 (1) (a) of the Act is to regulate the improper use of network facilities and services to ensure a safe online environment.

She said the provision serves to protect individuals and communities from harm arising from such misuse, adding that it targets communications that fall outside the scope of the constitutionally protected right to freedom of speech and expression.

Justice Nallini said the function of Section 233 (1) (a) is to ensure that the right to freedom of speech and expression set out in Article 10 (1) (a) of the Federal Constitution is not used to damage, affect or distress other network users.

“In the context of Malaysia, which is a plural and multi-racial society, the issues of race and religion are of primary concern. Section 233 (1) (a) of CMA ensures that communications which are intended to offend the sensitivities of each of the plurality of races that comprise its population are prohibited.

“Individuals are not spared. When a communication which is offensive is made with the intent to annoy an individual repeatedly over a course of time, escalating to a call for that individual to harm or injure herself, then Section 233 (1) (a) becomes entirely relevant and necessary,” she said, adding that the section does not infringe Article 10 (1) (a) of the Federal Constitution.

She said the result of the Court of Appeal’s decision that communications which were offensive with the intent to annoy, abuse, threaten or harass could not be regulated under the CMA, thus leaving a segment of online users vulnerable to the improper use of network facilities or services in relation to the deliberate transmission of such communications.

Concerning the case involving activist Heidy Quah, Justice Nallini, said the court was of the view that the prosecution should not have been initiated as the content of her Facebook post fell within the definition of the right to freedom of speech and expression under Article 10 (1) (a) of the Federal Constitution and could not form the basis of a charge under Section 233 (1) (a) of the CMA.

In affirming the Court of Appeal’s ruling that there was no basis to prosecute Quah, Justice Nallini held that her prosecution under that Section was unwarranted as the content of her Facebook post did not fall within the purview of that provision.

Instead, it comprised matters of fact and opinion protected by the right to freedom of speech and expression guaranteed under Article 10(1)(a) of the Federal Constitution, she said.

Justice Nallini said Quah’s post did not amount to a communication that was ‘offensive with intent to annoy” as the content was not offensive, and the mens rea element of “intent to annoy” was absent.

In July 2021, Quah, 31, was charged in the Kuala Lumpur Sessions Court for allegedly making “offensive” online comments in a Facebook post and in April 2022, the Sessions Court granted her a discharge not amounting to an acquittal (DNAA) due to the charge under Section 233(1)(a) being defective.

Justice Nallini, however, said the fact that the prosecuting authorities erred in bringing a charge against Quah under Section 233 (1) (a) did not warrant the striking down of the words “offensive” and “annoy” from the section, adding that the prosecution against Quah is a distinct and separate issue from the constitutionality of the two words within Section 233 (1) (a).

Delivering her last judgment, Justice Nallini, who is due to retire this month, said the constitutional right guaranteed under Article 10 (1) (a) envisages the use of the right in a coherent and regulated manner, adding that the Federal Constitution protected genuine expression, not communication which was intended to cause injury or harm. 

Last year, the Court of Appeal declared the words “offensive and “annoy” in Section 233 unconstitutional and struck them down after allowing Quah’s appeal to overturn the High Court’s dismissal of her lawsuit in 2023.

In the proceedings at the Federal Court today, senior federal counsel Shamsul Bolhassan and Liew Horng Bin appeared for the government, while lawyers Datuk Malik Imtiaz Sarwar, New Sin Yew and A.Surendra Ananth acted for Quah.

Lawyer Benjamin John Dawson appeared for the Malaysian Communications and Multimedia Commission (MCMC).

Counsel K. Shanmuga appeared for the Malaysian Bar, while lawyer Lim Wei Jiet represented Suara Rakyat Malaysia, the Clooney Foundation for Justice and the International Bar Association’s Human Rights Institute (IBAHRI), all appearing as amici curiae.

— BERNAMA