PUTRAJAYA (Feb 6): It is now up to the individual prosecution teams whether to continue with existing charges under the old version of Section 233 of the Communications and Multimedia Act 1998 (CMA).
Senior federal counsel Shamsul Bolhassan said this in light of the apex court's decision on Friday to reinstate the words “offensive” with the intention to “annoy” as a criminal offence in Section 233 of the CMA.
"For ongoing cases under Section 233, [you will have to refer to the] prosecution," he said when asked by the press.
On Friday, a five-member apex court panel partly allowed the government’s appeal against the Court of Appeal (COA)’s decision last August, which had struck down the words ‘offensive’ and ‘annoy’ from Section 233.
The apex court maintained that while activist Heidy Quah's charge was "incorrect" and "unwarranted", that in itself did not warrant the striking down of the words ‘offensive’ and ‘annoy’ from the section.
Reading out the panel's unanimous decision, senior apex court judge Tan Sri Nallini Pathmanathan said that by striking out those words, segments of online users will be left vulnerable to 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," she said.
Amended law came into force in February last year
It has to be noted that the government has passed amendments to the law, which include changes to the specific section at the heart of the court case. The amendments came into effect in February last year.
However, there are still a slew of charges — under the old version of the law — which are still pending before the court.
In November last year, the apex court had granted leave for the government's appeal. It also granted a stay of the COA's decision in relation to the challenged provision, following the government's undertaking that the cases in the courts below will be "status-quo" pending the final outcome of this case.
Among the changes in the new version of the law include 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.
Malik Imtiaz: 'Very encouraging judgement'
Quah's counsel, Datuk Malik Imtiaz Sarwar, said that they did not consider Friday's verdict a loss, as the judgement provided guidelines to Section 233(1)(a), and it should be read narrowly and applied with a very high threshold.
"I think this is a very important decision. It is the first decision of the Federal Court on speech in cyberspace. [It] offers a very useful guidance to all the stakeholders, including the government, and the Attorney General's Chambers (AGC), on how regulations of speech in cyberspace should be approached," he said.
The constitutional lawyer added that the decision also did not give a free hand of regulation powers over free speech concerning sharing legitimate ideas and advancing discourse.
"That's very useful. One of our concerns was that the Section was used in a way [...] that was stifling free speech in the true sense, in that it was being used to suppress potential discussions about matters [of] public interest.
"The Federal Court today has clarified that — that it’s not the purpose of that Section, and that's good," he said.
Quah, who was also present on Friday, said in a statement that they undertook this case to improve the law in Malaysia and to strengthen its democracy.
"This was never just about striking out the words 'offensive' and 'annoying'. It was about safeguarding freedom of speech — so that it cannot be used as a blunt instrument to silence dissent, punish critics, or intimidate those who speak truth to power," she said.
"The words 'offensive' and 'annoying' are no longer loose, catch-all terms. Before any charge can even be contemplated, there must be clear proof of harm, demonstrable intent, and that intent must be vexatious, malicious, injurious, and repeated. A single post, on its own, is no longer sufficient to trigger prosecution under this section.”