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FEDERAL COURT SAVES SECTION 233 CMA: ‘OFFENSIVE’ AND ‘ANNOY’ REMAIN CONSTITUTIONAL

1. Summary and Facts:
The Government of Malaysia v Heidy Quah Gaik Li [2026] MLJU 384 concerns on the statements online posted by the respondent, Heidy Quah Gaik Li. In June 2020, the respondent, a human rights activist made a posting in Facebook highlighting the spread of the Covid-19 pandemic within an immigration detention centre, attributing it to substandard conditions and insufficient health and safety measures. Subsequently, she was charged in the Sessions Court under Section 233(1)(a) of the Communications and Multimedia Act (CMA) for allegedly transmitting “offensive” remarks with the intention to “annoy.”

The Sessions Court found the charge defective and granted a DNAA. She then challenged the terms “offensive” and “annoy” as unconstitutional in the High Court, which dismissed her claim. On appeal, the Court of Appeal unanimously ruled the words unconstitutional and struck them down.

2. Legal Issues:

  • Whether section 233(1)(a) of the Communications and Multimedia Act 1988 is unconstitutional for violating freedom of speech.
  • Whether the doctrine of proportionality is applicable in determining the impugned words are contravene art 10(2)(a) FC.
  • Whether the terms “offensive” and “annoy” in Section 233(1)(a) CMA could be justified as a permissible restriction on freedom of speech under Article 10(2)(a) of the Federal Constitution on the ground of “public order.”

3. Court’s Findings:

  • The Federal Court allowed the Government’s appeal and set aside the decision of the Court of Appeal.
  • Section 233(1)(a) of the Communications and Multimedia Act 1998 is constitutional.
  • The court ruled that the provision does not violate Article 10(1)(a) of the Federal Constitution, as freedom of speech is subject to restrictions under Article 10(2)(a).
  • The doctrine of proportionality is not applicable in assessing the constitutionality of the impugned words, as consideration must first be given to the effect of Article 4(2) of the Federal Constitution (FC).
  • Section 233(1)(a) serves a legitimate purpose in regulating misuse of digital communication platforms.
  • The annoyance or offensive effects only individual sensibilities and does not threaten public order and therefore impugned words could not be justified as a restriction under Art 10(2)(a).

4. Practical Implications:
This judgment affirms the several principle of laws including:

  • The courts may apply the doctrine of proportionality when reviewing laws that restrict the constitutional rights.
  • Section 233(1)(a) of the Communications and Multimedia Act 1998 remains valid, allowing authorities to regulate improper online communications.

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