- The Court of Appeal’s decision today only makes it no longer a crime in Malaysia to make “offensive” online remarks, but it does not affect a newer version of the law, which was updated this year to criminalise “grossly offensive” online remarks.
- But the Court of Appeal’s decision today was still seen as “progressive” as it ruled that criminalising “offensive” online remarks goes against the constitutional right to freedom of speech.
- Instead of trying to “shoot the messenger”, the Court of Appeal said the authorities should have investigated activist Heidy Quah’s allegations in a Facebook post to see whether they were true or not.
PUTRAJAYA, Aug 19 — The Court of Appeal’s decision today which ruled that offensive online remarks made with intention to annoy another person is no longer a crime in Malaysia has been praised for being progressive and good for democracy.
After activist Heidy Quah won her constitutional challenge against the words “offensive” and “annoy” in the Communications and Multimedia Act’s Section 233, her lawyer New Sin Yew said the decision vindicates his client and civil society who argued that both words are problematic and inconsistent with the right to freedom of speech.
“So it’s a good decision and I think it’s an early Merdeka celebration for many of us,” he told reporters, also saying it was a “progressive” decision.
Noting that the Malaysian government had recently amended Section 233 to replace the word “offensive” with the word “grossly offensive”, New said this means the government also recognises the problems with the word “offensive”.
“‘Offensive’ is a much lower standard compared to ‘grossly offensive’, but that’s not to say that ‘grossly offensive’ is not in itself problematic, it still is,” he said.
New said the older version of Section 233 — which criminalises “offensive” online remarks —- had been abused and was used against political dissidents, activists, civil society and human rights defenders, and that today’s court decision only affects this older version.
As for the new version of Section 233 — which criminalises “grossly offensive” online remarks, New said civil society is expected to closely watch and observe how the government uses it.
The Malaysian government had in December 2024 started the process in Parliament to amend Section 233, and this new version became law and took effect on February 11, 2025.
The new version of Section 233 replaced the word “offensive” with “grossly offensive”, but did not modify the word “annoy”.
Section 233 now also has higher penalties for making such online remarks, including increasing the original penalty (maximum RM50,000 fine or maximum one-year jail term or both) to a heavier punishment (maximum RM500,000 fine or maximum two-year jail term or both).
Commenting on today’s decision, Quah told reporters that the decision would mean a lot for democracy in Malaysia.
“For the longest time, we realise that the civil society space has been working in a place of fear, where they may get arrested or charged for speaking truth to power,” she said.
“I think it’s really important that Malaysians are given the place to speak out against injustice, because as what the court has said, when we raise a concern — for example about issues of conditions of detention centres — you know it’s really important then that we investigate the allegation and not the whistleblower,” she said, stressing the importance of freedom of speech for Malaysia to progress.
Quah was previously charged in July 2021 under Section 233 for making a Facebook post that was alleged to be offensive with the intent to annoy, with her remarks in June 2020 revolving around matters such as alleged conditions in immigration detention centres amid the Covid-19 pandemic.
In 2022, Quah was given a “discharge not amounting to acquittal” (DNAA), which meant she was released from the charge but could be charged under the same law again.
Today, the Court of Appeal noted that Quah’s Facebook post should have prompted an investigation into her allegation, instead of being turned into a “shoot the messenger” situation.
“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’,” judge Datuk Lee Swee Seng said when reading out the broad grounds of the court’s unanimous ruling.
The judge said a message cannot be offensive with intent to annoy if it was found to be true, and that there are already other existing laws to charge Quah if her message was found to be false.
The judge later said treating the truth as offensive and annoying would risk “rewarding opacity and cover-up rather than promoting transparency and accountability”.
Ultimately, the Court of Appeal’s decision to invalidate the words “offensive” and “annoy” in Section 233 is based on these four main legal reasons:
- The Federal Constitution’s Article 10(2)(a) only allows freedom of speech and expression to be restricted for limited reasons such as “public order”, but offensive content with intent to annoy would not affect public order and cannot fall under Article 10(2)(a)’s limited restriction;
- Section 233’s aim is to regulate civility of online discourse, but criminalising offensive and annoying content is not a restriction related to this legitimate aim;
- Criminalising such content would be disproportionate. “To silence speech that is true just because some may find it offensive and annoying would be to use a sledgehammer to kill a fly.”;
- Criminalising offensive online content with intent to annoy would not just be a restriction of freedom of speech and expression, but will amount to a total prohibition of the freedom. (The court noted that individuals will be able to defend themselves in defamation cases if their offensive remark is true, but will risk being found guilty if charged under Section 233 as there is saying the truth is not a defence under Section 233.)
