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THE Putrajaya Court of Appeal today unanimously struck down as unconstitutional the words “offensive” and “annoy” in the previous iteration of Section 233 of the Communications and Multimedia Act 1998 (CMA), which criminalises online transmissions of offensive comments.
Federal Court judge Datuk Lee Swee Seng, chairing a three-judge panel, said the court found these words “offensive” and “annoy” in Section 233 to be unconstitutional, and against the Federal Constitution’s Article 10(2)(a).
He said that the charge of offending and annoying a third party could not be construed as going against public order.
“We declare this decision to have prospective effect, so as not to resurrect the past,” he added.
This means the ruling does apply prospectively to ongoing court cases where charges were filed under the pre-amendment law.
The Act was amended in December last year.
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.
In July 2021, Quah - the founder of Refuge for Refugees, was charged in the Kuala Lumpur sessions court with posting offensive online comments on Facebook highlighting the alleged mistreatment of refugees at immigration detention centres.
The sessions court in April the following year, the human rights activist a discharge not amounting to an acquittal (DNAA) due to the charge under Section 233(1)(a) being defective.
She then filed a civil action for a declaration that the words “offensive” and “annoy” in the provision were invalid and contravened two fundamental human rights safeguarded by the constitution.
The suit was dismissed by the High Court in Sept 2023, prompting her appeal.
The two other judges on the panel today were Court of Appeal judges Datuk Hashim Hamzah and Datuk Azman Abdullah.
Asked if the Malaysian government will be appealing today’s decision, senior federal counsel Liew Horng Bin said he would be seeking instructions on whether to file an appeal at the Federal Court.
Lawyers Datuk Malik Imtiaz Sarwar, Surendra Ananth, New Sin Yew and Nur Izni Syazwani represented Quah, while Kee Hui Yee held a watching brief for the Malaysian Bar, while lawyers Lim Wei Jiet and Nevyn Vinosh Venudran represented Clooney Foundation for Justice and Suara Rakyat Malaysia. – August 19, 2025
