By Zikri Kamarulzaman | Malaysiakini
The Court of Appeal has struck down a provision in the Communications and Multimedia Act that criminalises content that “annoy” or is “offensive”.
The judgment came after the appellate court allowed an appeal by activist Heidy Quah, who challenged the validity of those words in Section 233 of the Act.
As the Act was amended in December last year, the ruling only applies to the pre-amendment version of the law.
However, the ruling does apply prospectively to ongoing court cases where charges were filed under the pre-amendment law.
The government has an avenue to appeal the decision at the Federal Court.
When contacted, Quah’s lawyer, New Sin Yew, told Malaysiakini that the three-member panel ruled that including the words “annoy” and “offensive” in Section 233 of the Act was not permissible, was disproportionate, and amounted to a prohibition of free speech.
The panel was chaired by judge Lee Swee Seng. The other two judges were Hashim Hamzah and Azman Abdullah.
Quah had sued to challenge the validity of the two words in Section 233 in Sept 2021.
The suit was dismissed by the High Court in Sept 2023, prompting her appeal.
The civil action was initiated after Quah was charged in July 2021 under the section over a Facebook post highlighting the mistreatment of refugees at immigration detention centres.
In April 2022, the Sessions Court granted the human rights activist a discharge not amounting to an acquittal (DNAA) due to the charge under Section 233(1)(a) being defective.
Intent to annoy and public disorder
In the grounds of judgment released shortly after the verdict was delivered, the Court of Appeal judges set out sound reasoning.
“We would be living in a dangerous society if only matters that people love to hear are spoken. In the broad spectrum of a multi-racial and multi-religious society, there would be people at the far extreme who would be annoyed by what is considered offensive but no less true.
“Through the years of living together under a social contract, we develop the attitude of accommodation, and we give space for possible annoyance by moving away from the source of it.
“The message communicated by the appellant would ordinarily sound the alarm for a full and thorough investigation into what is alleged rather than an attempt to ‘shoot the messenger’.
“If indeed what is spoken is false, then the appellant can always be charged for initiating a communication that is ‘false with intent to abuse, threaten, or harass another’,” the judgment read.
The judges said that whatever the definition of “offensive” and “annoy” may be, it is difficult to envisage that an offensive speech with the intention to annoy could pose a threat to public order.
They pointed out that sending an offensive message just to annoy someone doesn’t threaten public order, and making it a crime would be an overstep by the state – especially when the state promises freedom of expression, with only a few specific limits. In this case, the limit concerning public order doesn’t apply.
“Section 233 of the CMA does not provide any standards as to what amounts to offensive or what would amount to an intent to annoy. When all types of speeches could potentially be offensive if a single person finds it so, then freedom of speech has become illusory and enforcement becomes arbitrary.
“Every speech would have to be sanitised irrespective of its truth so as not to attract the sanction of s 233(1),” they added.
