KUALA LUMPUR: The Court of Appeal ruling involving the words "annoy" and "offensive" in Section 233 of the Communications and Multimedia Act 1988 applies only to the period before the section's amendment, says Communications Minister Datuk Fahmi Fadzil.
He told the Dewan Rakyat on Tuesday (Oct 28) that the government respects the court's decision and has examined the matter from constitutional and legal perspectives.
Fahmi said the government has filed an appeal against the ruling with the Federal Court, following the advice of the Attorney General’s Chambers (AGC).
ALSO READ: Words 'offensive' and 'annoy' in Communications Act unconstitutional, rules Appeals Court
"It is appropriate for all parties to await the Federal Court’s decision before taking any stance on the elements of 'offensive' and 'annoy' within the provisions of Section 233 before the amendment.
"The judicial process must be respected by all parties to avoid any speculation that may affect the Federal Court’s decision and also to prevent issues that could lead to sub judice," he said during the oral question-and-answer session.
Syahredzan Johan (PH-Bangi) wanted to know the government’s stance on the Court of Appeal's ruling that the terms "annoy" and "offensive" under Section 233 were unconstitutional, as well as the government's initiatives to harmonise Section 233 with the court's decision.
The Section in contention was amended to replace "offensive" with "grossly offensive" and includes specific explanations for prohibited content, among other changes.
In the Dewan Rakyat today, Fahmi also stressed that the Malaysian Communications and Multimedia Commission (MCMC) is committed to carrying out proactive monitoring and taking enforcement action against online content identified as obscene, indecent, false, threatening, or grossly offensive, in contravention of Section 233.
"In this regard, in line with the institutional reform agenda advanced under the Madani administration, the government has amended Section 233 by replacing the word 'offensive' (jelik) with 'grossly offensive' (jelik melampau) last year, thereby establishing a higher threshold (to qualify as) an offence," he added.
ALSO READ: Court sets Aug 19 for decision in activist’s appeal over challenge to online speech law
On Aug 19, the Court of Appeal struck down a part of Section 233 that consisted of the words "offensive" and "annoy".
A three-judge panel held that usage of the words in the Section was inconsistent with Article 10(2)(a) of the Federal Constitution read with Article 8, and hence unconstitutional and void.
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."
The amendments to the Section took effect in February.
Activist Heidy Quah had 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.
On July 27, 2021, Quah, the founder of Refuge for the Refugees, claimed trial at the Kuala Lumpur Sessions Court to a charge of sharing offensive content in a Facebook post that alleged mistreatment of refugees at an Immigration detention centre.
