By Malaysiakini

Activist Heidy Quah Gaik Li is taking the government to court over parts of section 233 of the Communications and Multimedia Act that criminalises offensive online comments.

She filed a civil lawsuit in the High Court in Shah Alam on Aug 30 through law firm AmerBON. She seeks a court order to rule the words “offensive” and “annoy” in section 233 invalidated for being unconstitutional.

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.

Refuge for Refugees founder Quah confirmed the filing with Malaysiakini.

She is currently facing court charges over the same law concerning a Facebook post last year on alleged mistreatment of refugees at Immigration detention centres.

Last month she claimed trial before the Kuala Lumpur Sessions Court to a charge of improper use of network facilities to upload an offensive statement at around 5.30am on June 5, 2020.

According to section 233(3) of the Act, she faces a maximum fine of RM50,000, or jail time of not more than a year, or both, if found guilty.

Quah’s hearing on those charges was set for mention at the KL Sessions Court this morning, while her civil lawsuit is scheduled for online case management at the High Court in Shah Alam on Sept 14.

According to a report by¬†The Malay Mail, 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 only seeking those two words to be removed from section 233, with the other parts of section 233 to be retained.

In the court filing, Quah argues that the section 233 provisions — namely the words “offensive” and “annoy” — which make it an offence to knowingly make any online comments which are offensive and with the intent to annoy another person, are restrictions on free speech that extend beyond 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.

On the grounds for her lawsuit, Quah argued that the section 233 parts that criminalise offensive content online are not a “permissible restriction” under Article 10(2)(a).