PUTRAJAYA: The Court of Appeal has struck down a part of Section 233 of the Communications and Multimedia Act 1998 that consisted of the words “offensive” and “annoy”.
A three-judge panel, chaired by Federal Court judge Justice Lee Swee Seng, held that the words “offensive” and “annoy” in Section 233 were unconstitutional.
“We find the impugned words ‘offensive’ and ‘annoy’ in Section 233 constituting an offence to be inconsistent with Article 10(2)(a) of the Federal Constitution read with Article 8, and hence unconstitutional and void.
“It is not a permissible restriction to freedom of expression under our Federal Constitution.
“The appeal is allowed and the order of the High Court is set aside,” Justice Lee said.
The court did not make any order as to costs.
“Being a constitutional matter, we make no order as to costs as no one is the winner but the Malaysian public where freedom of expression is concerned.
“We declare this decision to have prospective effect so as not to resurrect the past which is better left interned,” Justice Lee said.
Other judges on the Bench were Court of Appeal judges Justices Hashim Hamzah and Azman Abdullah.
The Court of Appeal’s judgment arose from an appeal by activist Heidy Quah, who filed an originating summons to declare the words in the law provision as null and void as it is inconsistent with Article 10 of the Federal Constitution read with Article 8.
Section 233(1)(a) states that it is an offence for a person to make, create or solicit, and initiate the transmission of any online comment which is “obscene, indecent, false, menacing or offensive” with “intent to annoy, abuse, threaten or harass another person.
However, under an amendment effective February this year, the word “offensive” was replaced with “grossly offensive”.
In this respect, the appellate court found that the amendment did not affect Quah’s legal challenge.
On July 27, 2021, Quah, who is the founder of Refuge for the Refugees, claimed trial at the Kuala Lumpur Sessions Court to a charge of sharing offensive content over a Facebook post that alleged mistreatment of refugees at an Immigration detention centre.
She was accused of making the post through her Facebook page under the name “Heidy Quah” with intent to insult others at about 5.30am on June 5, 2020.
On April 25, 2022, she was granted a discharge not amounting to an acquittal after the Sessions Court allowed her preliminary objection.
At the same time when her case at the Sessions Court began, Quah filed an originating summons at the Shah Alam High Court on Aug 30, 2021, to challenge the provision of Section 233 that was used against her.
On Sept 12, 2023, the High Court dismissed her application without order as to costs. Quah then appealed the matter at the Court of Appeal, which resulted in yesterday’s judgment.
