By Hidir Reduan Abdul Rashid | Malaysiakini
Activist Heidy Quah has turned to the Court of Appeal to nullify part of a law criminalising offensive online comments.
The Refuge for Refugees founder is appealing against a Shah Alam High Court verdict in September last year that dismissed her challenge against the validity of parts of section 233 of the Communications and Multimedia Act 1998.
Section 233(1)(a) states that it is an offence for a person to make, create or solicit, and initiate the transmission of any online comment which is “obscene, indecent, false, menacing or offensive” with “intent to annoy, abuse, threaten or harass another person”.
Her civil action targeted the validity of the words “offensive” and “annoy” in the provision.
In July 2021, before the Kuala Lumpur Sessions Court, Quah claimed trial to the offensive online comments charge linked to a Facebook post highlighting the mistreatment of refugees at immigration detention centres.
In April 2022, the criminal court granted the human rights fighter a discharge not amounting to an acquittal (DNAA) due to the charge under section 233(1)(a) being defective.
In the interim period between her charge and DNAA, Quah filed the civil court action for a declaration that the words “offensive” and “annoy” in the provision were invalid and contravened two fundamental human rights safeguarded by the Federal Constitution.
These are the constitutional right to equality before the law and freedom of speech per Articles 8 and 10 of the Federal Constitution respectively.
When contacted, Quah’s counsel New Sin Yew and the government’s legal representative senior federal counsel Liew Horng Bin confirmed the Court of Appeal part-heard her appeal today.
The appellate court will resume hearing next year.
Via the civil action, Quah argued that the section 233 provision – namely the words “offensive” and “annoy” – amounted to restrictions on free speech that extend beyond constitutional limits.
Under the Federal Constitution, Article 10(2)(a) allows Parliament to impose restrictions that it considers necessary or expedient in the interest of national security, public order or morality, to protect parliamentary privileges, or to provide against contempt of court, defamation or incitement to any offence.
Quah argued that the section 233 parts that criminalise offensive content online are not a “permissible restriction” under Article 10(2)(a).
