By Ida Lim | Malay Mail

Heidy Quah speaks during a press conference in Petaling Jaya, June 20, 2018. — AHMAD ZAMZAHURI

A Malaysian activist has sued the government over a law which makes it a crime to make “offensive” comments online which “annoys” others, arguing that it goes against the Federal Constitution.

Activist Heidy Quah Gaik Li filed the lawsuit over parts of section 233 of the Communications and Multimedia Act which criminalises offensive online comments.

This is the same law that was used recently to charge her over her 2020 Facebook post, where she had highlighted the alleged poor treatment of detainees at immigration detention centres.

Specifically, under section 233(1)(a), a person who makes, creates or solicits, and initiates the transmission of any online comment which is “obscene, indecent, false, menacing or offensive” with “intent to annoy, abuse, threaten or harass another person” commits an offence.

In Quah’s civil lawsuit filed on August 30 in the High Court in Shah Alam through an originating summons, she is seeking a court order which is targeted at having just the “offensive” and “annoy” words in section 233 invalidated for being unconstitutional.

The court order that Quah is seeking in her lawsuit is: “An order that the provisions of section 233 of the Communications and Multimedia Act 1998, namely the words ‘offensive’ or ‘annoy’ or both, which makes it an offence to knowingly make any comment which is offensive in character with the intent to annoy another person by means of application services is null and void as it is inconsistent with Article 10 of the Federal Constitution read with Article 8 of the Federal Constitution.”

This means that she is seeking only for those two words to be removed from section 233, with the other parts of the section 233 to be retained.

As for the reasons why she had filed this lawsuit, court papers showed Quah as arguing that the section 233 provisions — namely the words “offensive” or “annoy”, or both words — which makes it an offence to knowingly make any online comments which are offensive and with the intent to annoy another person, are not a restriction on free speech within constitutional limits.

Under the Federal Constitution, Article 10(1) guarantees all Malaysian citizens the right to freedom of speech and expression, while 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.

In the grounds for her lawsuit, Quah argued that the section 233 parts that criminalise online offensive content are not a “permissible restriction” under Article 10(2)(a), and are not a “restriction” for a legitimate aim or proportionate to a legitimate aim under Article 10(2)(a) read together with Article 8.

Quah also argued that the section 233 parts that make online offensive content a crime are not a “restriction” under Article 10(2)(a), but is a “prohibition”.

Based on court papers sighted by Malay Mail, Quah’s lawsuit was filed on her behalf by the law firm AmerBON.

Quah’s civil lawsuit is scheduled for an online case management at the High Court in Shah Alam on September 14.

As for Quah’s criminal case, it is scheduled for mention today before Sessions Court judge Edwin Paramjothy Michael Muniandy at the Sessions Court in Kuala Lumpur.

Quah, who is the founder of the Refuge for the Refugees non-governmental organisation, was charged on July 27 this year over her Facebook post on June 5, 2020.

She was charged under section 233(1)(a) with having allegedly knowingly made and initiated the transmission of offensive communications through the Facebook post.

If convicted, the offence is punishable by a maximum fine of RM50,000 or a maximum one-year jail term or both, with a further fine of RM1,000 for every day during which the offence is continued after conviction.

Quah has pleaded not guilty and claimed trial, and the trial at the Sessions Court has yet to start.