THE ruling by the Court of Appeal regarding the terms “offensive” and “grossly offensive” was applicable only before the amendment of Section 233 of the Communications and Multimedia Act 1998 (Act 588), the Dewan Rakyat was told.
Communications Minister Datuk Fahmi Fadzil (pic) said 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 following the advice of the Attorney General’s Chambers.
“It is appropriate for all parties to await the Federal Court’s decision before making any stance on the elements of ‘grossly offensive’ and ‘annoying’ within the provisions of Section 233 of Act 588, prior to the amendment.
“This 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.
The minister was responding to a query from Syahredzan Johan (PH-Bangi) regarding the government’s position on the Court of Appeal’s ruling, which deemed the terms “annoy” and “offensive” under Section 233 as unconstitutional restrictions. He also addressed the government’s efforts to align Section 233 with the court’s decision.
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, which contravenes Section 233 of the Act.
“In this context, to support the changes aimed at improving the system under the Madani administration, the government changed Section 233 last year by replacing the word ‘offensive’ with ‘grossly offensive’, which sets a higher standard for what counts as an offence,” he added.
On Aug 20, the Court of Appeal struck down a part of Section 233 of the Act that consisted of the words “offensive” and “annoy”.
A three-judge panel held that the words “offensive” and “annoy” in Section 233 were unconstitutional, as they are 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, solicit, and initiate the transmission of any online comment that is “obscene, indecent, false, menacing, or offensive” with “the 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 the legal challenge 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.
On July 27, 2021, Quah, who is the founder of Refuge for the Refugees, claimed trial at the Kuala Lumpur Sessions Court on a charge of sharing offensive content over a Facebook post that alleged mistreatment of refugees at an Immigration detention centre.
Quah was accused of making the post with the intent to insult others on June 5, 2020.
