Apex court rules ‘offensive’ and ‘annoy’ not unconstitutional
PUTRAJAYA: The Federal Court has reinstated the words “offensive” and “annoy” in Section 233(1)(a) of the Communications and Multimedia Act (CMA) 1998, ruling that the terms are not unconstitutional.
A five-judge panel chaired by Chief Justice Wan Ahmad Farid Wan Salleh held that the two words did not infringe Article 10(1)(a) of the Federal Constitution, which guarantees freedom of speech and expression.
The other judges on the panel were Federal Court Justices P. Nallini, Che Mohd Ruzima Ghazali, Mohd Nazlan Mohd Ghazali and Collin Lawrence Sequerah.
Delivering the decision, Justice Nallini said the words must be interpreted in the context of the digital landscape, particularly social media, where there has been a rise in online harassment, doxxing, malicious pranks, hoaxes, racist content and derogatory attacks on religious sensitivities.
She said the purpose of Section 233(1)(a) was to regulate the improper use of network facilities and services in order to provide a safe online environment.
“It serves to protect individuals and communities from harm arising from such improper use.
“In other words, Section 233(1)(a) targets communications that fall outside the purview of the right to freedom of speech and expression.
“Therefore, it does not have the effect of infringing that right as guaranteed under Article 10(1)(a),” she said yesterday.
The court was hearing an appeal by the government against a Court of Appeal ruling that had struck down the words “offensive” and “annoy” from Section 233(1)(a) following a lawsuit brought by activist Heidy Quah.
Quah had filed an originating summons seeking to have the words declared null and void after she was charged under the same provision over a Facebook post critical of the authorities.
On Quah’s prosecution, Justice Nallini described the charge as “baseless”.
“This is because the content of her Facebook post falls within the definition of the right to freedom of speech and expression under Article 10(1)(a).
“It therefore cannot form the basis of a charge under Section 233(1)(a) of the CMA,” Justice Nallini said.
The Federal Court allowed the government’s appeal in part, reversing the portion of the Court of Appeal’s judgment that struck out the words “offensive” and “annoy” for being inconsistent with Article 10(1)(a).
At the same time, it affirmed the appellate court’s finding that there was no basis to prosecute Quah on grounds that her post was “offensive” or communicated “with intent to annoy”.
Speaking to reporters after the ruling, Quah’s lawyer Datuk Malik Imtiaz Sarwar said that although the two impugned words were upheld as constitutional, the Federal Court had “narrowed down” the scope of Section 233(1)(a).
“One of our alternative arguments was that even if the words are constitutional, the Section should be read down. That is what the court did today.
“The threshold for its application is really high. It must be targeted at speech published with the intention to cause harm. I do not view this decision as a loss,” he said.
Quah, who was present in court, said she was grateful that the Federal Court had acknowledged that the prosecution against her was “wrong and misplaced”.
She began her legal challenge at the Shah Alam High Court on Aug 30, 2021, a month after she was charged under Section 233(1)(a) in the Sessions Court for allegedly sharing offensive content through a Facebook post alleging mistreatment of refugees at an immigration detention centre.
She was accused of making the post via her Facebook page, “Heidy Quah”, at about 5.30am on June 5, 2020, with intent to insult others.
Section 233(1)(a) makes it an offence to make, create or solicit, or to initiate the transmission of any online communication that is “obscene, indecent, false, menacing or offensive” with the “intent to annoy, abuse, threaten or harass another person”.
Under an amendment that came into effect in February 2025, the word “offensive” was replaced with “grossly offensive”.
The amendment, however, did not affect Quah’s legal challenge.
On April 25, 2022, Quah was granted a discharge not amounting to an acquittal after the Sessions Court allowed her preliminary objection.
On Sept 12, 2023, the High Court dismissed her legal challenge without an order as to costs. She later appealed.
On Aug 19, 2025, the Court of Appeal allowed her appeal, striking out the words “annoy” and “offensive” from the provision.
