PUTRAJAYA (Feb 6): The apex court has reinstated the words “offensive” with the intention to “annoy” as a criminal offence in Section 233 of the Communications and Multimedia Act 1998 (CMA).

A five-member panel unanimously overturned the appellate court's decision, among others, saying that the words must not be read in isolation, but stressed that there has to be a higher threshold for any prosecution.

Senior Federal Court judge Tan Sri Nallini Pathmanathan, who read out the panel's decision for about an hour, nevertheless reiterated that the prosecution's decision to charge activist Heidy Quah was "unwarranted and incorrect".

"However, the fact that the prosecuting authorities erred in bringing a charge against Heidy Quah under Section 233(1)(a) of the CMA does not, of itself, warrant the striking down of the words ‘offensive’ and ‘annoy’ from the section.

"This may well leave segments of online users open to the danger of communications made with the specific intent to cause annoyance, harm, or distress, which cannot be regulated.

"The incorrect prosecution against Heidy Quah under Section 233(1)(a) of the CMA is a distinct and separate issue from the constitutionality of the words ‘offensive’ and ‘annoy’ within that section," the judge said.

Nallini said that the words "offensive" and "annoy" within the section has to be understood in the context of the larger digital world.

"Section 233(1)(a) is to regulate the ‘improper use of network facilities and services’, with a view to providing a safe online environment, and protecting individuals and communities from suffering harm as a result of such improper use," she said.

The section “targets communications that fall outside the purview of the freedom of speech and expression”, she ruled. “Therefore, it does not have the effect of infringing that right as guaranteed under Article 10(1)(a) of the Federal Constitution.”

The result of the Court of Appeal (COA) decision was that communications which were "offensive with intent to annoy" as well as "offensive with intent to abuse, threaten or harass" could not be regulated and leaves a segment of online users vulnerable to such misuse, Nallini warned.

The panel was led by Chief Justice Datuk Seri Wan Ahmad Farid Wan Salleh. The others were apex court judges were Datuk Che Mohd Ruzima Ghazali, Datuk Mohd Nazlan Mohd Ghazali, and Datuk Collin Lawrence Sequerah.

Nallini added that the issue of unwarranted prosecutions in context of Section 233(1)(a) of the CMA is to narrow down the types of cases falling within its purview and to set requisite thresholds in order to prosecute.

"This means that it is only when ‘offensive’ communication is undertaken with an express intent to annoy another user or a body of users, that there is sufficient basis to prosecute for a transgression of Section 233(1)(a) of the CMA.

"In the context of Malaysia, which is a plural and multi-racial society, the issues of race and religion are of primary concern. Section 233(1)(a) of the CMA ensures that communications which are intended to offend the sensitivities of each of the plurality of races that comprise its population are prohibited.

"For example, an online communication which demeans, humiliates, or puts down a particular racial segment of society, and which is sent with the intent to annoy one or more members of that racial grouping, falls squarely within the term ‘offensive’ with ‘intent to annoy’. Such a communication may well escalate into a public furore, thereby adversely affecting public order," she said.

Nallini added that other forms of communications that fall within this purview are, for example, posts that attack the constitutional monarchy, or prolonged posts made with intent to annoy an individual repeatedly resulting in self-harm.

Friday's decision is in relation to the appellate court's decision last August in Quah's case.

The COA had struck down the provision of the CMA which criminalises online posts that “annoy” and are “offensive”, on the grounds that it violated freedom of speech guaranteed in the Federal Constitution.

The COA had said that Section 233 of the CMA does not clearly define what counts as offensive remarks, or an intent to annoy.

An offence under Section 233 once carried a fine of up to RM50,000, a maximum one-year jail term, or both, upon conviction.

It has to be noted that the government had passed amendments to the law, which include changes to this specific section at the heart of the court case. The amendments came into effect in February last year.

Among the changes are the addition of the word "grossly" offensive, six guidelines on definitions, and an increased penalty.

If found guilty under Section 233, a person now faces RM500,000 in fines, or imprisonment for a maximum of two years, or both, and is further liable to additional fines of RM5,000 for every day during which the offence is continued after conviction.

Quah was charged in 2021 under the same law for an “offensive” Facebook post about conditions in an immigration detention centre during the Covid-19 pandemic.

The ruling was in relation to Quah’s challenge against her 2021 charge, under the same section of the CMA.

Although the Sessions Court later granted her a discharge not amounting to an acquittal, Quah pressed ahead with a constitutional challenge of the law, via an originating summons.

The High Court dismissed her application in 2023, but the COA reversed that finding.

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