In Heidy Quah Gaik Li v. Kerajaan Malaysia (Civil Appeal No. B-01(A)-514-10/2023), the Court of Appeal (“COA”) unanimously ruled that the prohibition against "offensive" communication with intent to "annoy" under section 233(1)(a) of the Communications and Multimedia Act 1998 ("CMA") is unconstitutional. The COA determined that these provisions exceeded permissible restrictions to freedom of expression and were consequently incompatible with Article 10 (Freedom of Speech, Assembly and Association) and Article 8 (Equality) of the Federal Constitution (“FC”).
 
Brief facts
 
The Facebook Post and Charge
 
In June 2020, the Appellant, Heidy Quah, a human rights activist, published a Facebook post drawing attention to the spread of Covid-19 pandemic in an immigration detention centre, which she attributed to poor conditions and inadequate safety and health precautions at the centre. Thereafter, in July 2021, she was charged in the Sessions Court under section 233(1)(a) of the CMA for transmitting “offensive” comments with intent to “annoy”.[1]
 
Sessions Court
 
Following a preliminary objection raised by the Appellant, the Sessions Court held that the charge was defective and granted the Appellant a discharge not amounting to an acquittal (DNAA). This left open the possibility of future prosecution.
 
High Court
 
Even before her preliminary objection was raised in the Sessions Court proceedings, the Appellant had filed an originating summons at the Shah Alam High Court, seeking a declaration that the terms "offensive" and "annoy" in section 233(1)(a) of the CMA (“Impugned Words”) were unconstitutional given that they were inconsistent with Articles 10 and 8 of the FC.
 
In September 2023, the High Court dismissed the application and held that the Appellant’s argument that the Impugned Words were void for vagueness per se was misguided, noting that they were capable of being understood within the local context in Malaysia based on the objective, surrounding circumstances and the principles on which the CMA was drafted. In so ruling, the High Court relied on the earlier decisions in Syarul Ema Rena binti Abu Samad lwn Pendakwa Raya [2018] MLJU 1128 and Martina bt Abu Hanifa lwn Pendakwa Raya [2021] MLJU 1724, both of which had rejected similar constitutional challenges to section 233 of the CMA.
 
Appeal

The Appellant appealed to the COA, contending that the High Court erred in dismissing the originating summons. She argued that the Impugned Words are unconstitutional because: 

Article 10(2)(a) which is central to the Appellant’s contentions permits Parliament to, inter alia,  make laws to impose such restrictions on the freedom of speech as it deems necessary or expedient in the interest of the security and public order.
 
Court of Appeal
 
The COA unanimously allowed the appeal, declaring that the Impugned Words were unconstitutional and struck them down. The COA carefully examined the Appellant’s four grounds and addressed each in turn.
 
Permissible Restriction under Article 10(2)(a)
 
The COA first considered whether the Impugned Words could qualify as a restriction permissible under Article 10(2)(a), including restriction on the ground of “public order”. In doing so, the COA drew a crucial distinction between “law and order” and “public order”, relying on Indian constitutional precedents, including Dr. Ram Manohar Lohia v State of Bihar and Others AIR 1966 SC 740 where the Indian Supreme Court held that “law and order” represents the broadest of three concentric circles, within which lies the narrower circle of “public order”, and the smallest circle representing “the security of the State” – an act may affect “law and order” without necessarily disturbing “public order”, and an act may affect “public order” but not “the security of the State”. The COA emphasised that only matters which seriously affect the community at large fall within the ambit of “public order”. By contrast, annoyance or offensiveness concerns individual sensibilities and does not rise to a level that threatens the public order of society. Accordingly, the Impugned Words could not be justified as a permissible restriction under Article 10(2)(a).
 
Legitimate Aim
 
The central question surrounds the aim of section 233 of the CMA, and the argument that its aim is to regulate the civility of discourse over the internet. The COA rejected this argument, holding that criminalising offensive speech with the intent to annoy does not have any rational nexus with any of the objectives of CMA as set out in section 3(1) of the CMA². The COA further opined that section 233 cannot be said to have a rational connection to the legitimate aim of regulating the civility of the discourse as it wrongly assumes a uniform standard for determining offensiveness in Malaysia’s diverse society. In the absence of an objective standard, regulating the civility of discourse over the internet becomes a euphemism for policing and censorship of undesirable speeches by the authorities, with the resulting chilling effect over freedom of speech and expression enshrined in Article 10(1)(a) of the FC. Thus, the law could not be said to pursue a constitutionally legitimate aim.
 
Proportionality
 
The COA then applied the proportionality test articulated in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 and Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 5 CLJ 780. It held that section 233 of the CMA failed this test, as the restriction imposed was far too broad in relation to any legislative aim of the CMA. The provision carried heavy penalties, including imprisonment, yet contained no available defences or exceptions such as truth and fair comment. Consequently, factually accurate speech could still be deemed offensive and attract criminal liability, since the test focuses on whether a person feels offended rather than whether the speech is true. To silence speech which is true just because some may find it offensive and annoying would be disturbingly disproportionate and, in the words of the COA, “would be to use a sledgehammer a (sic) to kill a fly.”
 
Prohibition Rather Than Restriction
 
Last but not least, the COA held that the breadth of the Impugned Words amounts not to a restriction but to an outright prohibition on speech. While civil defences such as justification, fair comment, or qualified privilege are available to defend a statement in a civil cause of action (e.g. a civil defamation claim) that only needs to be proved on the balance of probabilities, the same statement could constitute a criminal offence under section 233 with no available defence though the prosecution has to prove its case beyond reasonable doubt. Thus the Impugned Words would completely prohibit an entire category of speech that is offensive in character and would criminalise both protected as well as permitted or innocent statements.
 
Comments

By striking down the Impugned Words, the COA recognised that criminalising mere annoyance or offensiveness disproportionately burdens free expression, especially where other provisions already criminalise false, obscene, or menacing communications.

Such judgment carries particular significance in today’s digital era, where information, ideas, and opinions can be shared at unprecedented speed and reach vast audiences almost instantly. Online discourse naturally encompasses a wide spectrum of expression, from measured commentary to robust and even harsh language, and such diversity is essential to democratic debate, especially in a plural society like Malaysia. As highlighted by the COA – “In living and let live we make space for one another in the virtual marketplace of ideas”.
 
It is possible that the matter may next be brought before Malaysia’s apex court, the Federal Court, where the Government could challenge the COA’s decision. In that event, whether the Federal Court upholds or overturns the decision, its judgment will establish an authoritative decision on the constitutionality of the Impugned Words in section 233 of the CMA. However, such decision may be of limited precedent value as section 233(1)(a) has been amended from 11 February 2025 by replacing the word “offensive” with the words “grossly offensive”.³
 
It is to be noted that the COA was cognisant of the foregoing amendment to section 233 of the CMA but correctly declined to comment on its constitutionality as the Appellant’s appeal related to the pre-amendment position under the CMA.
 
 
For further information, please contact Charmayne Ong (Partner), Natalie Lim (Partner), Jillian Chia (Partner) and Lim Wen Keat (Associate) of the Technology, Media and Telecommunications Practice of Skrine.
 

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