PUTRAJAYA, Jan 13 — Was the Court of Appeal correct to decide that “offensive” online comments with the intention to annoy is no longer a crime in Malaysia? 

The Federal Court is expected to decide on February 6.

A panel of five judges will deliver the decision, chaired by Chief Justice Datuk Seri Wan Ahmad Farid Wan Salleh. The other judges are Tan Sri Nallini Pathmanathan, Datuk Che Mohd Ruzima Ghazali, Datuk Mohd Nazlan Mohd Ghazali and Datuk Collin Lawrence Sequerah. 

Today, the Federal Court heard the government’s appeal against the Court of Appeal’s decision, which was in favour of activist Heidy Quah’s challenge against parts of Section 233 of the Communications and Multimedia Act 1998 (CMA).

Previously on August 19, 2025, the Court of Appeal ruled that the two words “offensive” and “annoy” in Section 233 of the Communications and Multimedia Act 1998 (CMA) are unconstitutional and invalid.

In other words, the Court of Appeal said that offensive online remarks with the intent to annoy should not be made a crime, as it goes against the right to freedom of speech and expression.

Before it heard the appeal, the Federal Court today allowed the Malaysian Communications and Multimedia Commission’s (MCMC) application to be an intervener, or to join the case at this stage.

Three questions in the appeal

The Federal Court is being asked to decide on three questions of law, including the effect of the Federal Constitution’s Article 4(2) in this case.

Another question is whether the objective of CMA’s Section 233(1)(a) – which includes the words “offensive” and “annoy” – is to prevent misuse of online communications network and to protect the Malaysian society’s basic standards, and that it is therefore in the interest of the public order and morality under Article 10(2) of the Federal Constitution.

This is because Article 10(1) of the Federal Constitution guarantees every Malaysian the right to freedom of speech and expression, but Article 10(2) allows Parliament to make laws to restrict this freedom if necessary for reasons such as public order or morality.

Among other things, the government is arguing that the restriction of freedom of expression through Section 233 is allowed as it falls under the category of being for public order and morality.

Just like the government, MCMC also holds the position that the Court of Appeal was wrong to declare the words “offensive” and “annoy” in Section 233 as unconstitutional and invalid. 

Senior federal counsels Shamsul Bolhassan and Liew Horng Bin represented the government, while lawyers Benjamin John Dawson, Kresha Paskaren and Nor Syazana Jamaluddin represented the MCMC.

Among other things, Quah’s lawyers argue that the Court of Appeal was correct in deciding that criminalising “offensive” online remarks with the intent to annoy is not a permissible restriction under Article 10(2) and that it is disproportionate to the protection of public order or morality.

Lawyers who represented Quah today are lawyers Datuk Malik Imtiaz Sarwar, New Sin Yew, Surendra Ananth, Nur Izni Syazwani Ahmad, Yvonne Lim, and Abby Si Xinyi.

Four organisations today also provided assistance to the Federal Court as amicus curiae: the Malaysian Bar (represented by lawyers K. Shanmuga and Kee Hui Yee), while lawyers Lim Wei Jiet and Nevyn Vinosh Venudran represented the Clooney Foundation for Justice, Suara Rakyat Malaysia, and International Bar Association’s Human Rights Institute.

Shanmuga said the Malaysian Bar urges the Federal Court to uphold the Court of Appeal’s decision, while the three other organisations want the Federal Court to dismiss the Malaysian government’s appeal.