PUTRAJAYA, Feb 6 — The Federal Court’s landmark decision today is “good” for freedom of speech in Malaysia, as the court has ruled that the Malaysian government now has to meet higher standards before it can even charge a Malaysian with “offensive” online remarks with the “intent to annoy”, lawyers said.

Earlier today, the Federal Court decided that the words “offensive” and “annoy” should not be removed from the Communications and Multimedia Act’s Section 233(1)(a), which means that it is still a crime in Malaysia to make offensive online remarks with the intention to annoy.

But at the same time, the Federal Court ruled that the phrase “offensive with intent to annoy” under Section 233(1)(a) is to be “read down”, which means that the crime must be narrowed down to only when a person makes offensive remarks with the “express intent” of annoying others.

The Federal Court said there must be a clear intention to annoy before the prosecution can charge anyone under Section 233(1)(a), and that this law would be used against those who make online comments with the purpose of annoying, causing harm and distress to others. 

In other words, Malaysians cannot be charged just because their online comments are seen as “offensive”, as the prosecution must show that they made the comments with the intention to annoy others.

The Federal Court had said Section 233(1)(a) is still needed to protect Malaysians from harmful comments such as hate speech, as well as when offensive comments are made with the intention to repeatedly annoy a person and to call that person to harm or injure themselves.

Lawyer Datuk Malik Imtiaz Sarwar, who represented activist Heidy Quah, said the court’s decision today is “pivotal” and noted the Federal Court had today set very high thresholds before anyone can be charged for offensive online remarks.

“The law has been clarified in a way that I think reflects the way we always looked at it - we need regulation, but regulation cannot be arbitrary. 

“It cannot be at the whimsy, subjective discretion of the prosecutor, and it must be specifically targeted at conduct that is really harmful. Not like I send you an email, you are annoyed, and then suddenly I’m charged,” he told reporters when met outside the courtroom after the decision. 

Quah’s lawyer New Sin Yew said the Federal Court has listed many requirements before a person can be charged under Section 233.

New said this includes the requirement that offensive online comments be made repeatedly.

He added that the Federal Court had said that the person’s intention cannot be determined based on the content itself, and that “there need to be surrounding circumstances which show a very clear, vexatious, malicious intent to annoy” and that “there need to be harm”.

With the court now setting this higher threshold before a person can be charged, New said this could affect pending criminal cases in the courts where individuals have been charged under Section 233 over alleged “offensive” online comments with “intent to annoy”.

“So all those cases, the prosecution will probably have to review them and reconsider whether or not it meets the very high threshold which has been set today by the Federal Court,” he said, indicating that the prosecution could consider whether or not to drop those cases in court.

New said Section 233 has a history of being “misused by the government” to either arrest or prosecute politicians and activists based on the words “offensive” and “annoy” under that law, and said the Federal Court now makes clear that such action cannot be taken against political speeches.

Imtiaz said this is because the Federal Court had said that political commentary is protected under freedom of speech, and that this was important as such views including opinions about politicians all go to “how we vote at the end of the day”.

Imtiaz also said it was “good” that the Federal Court had clarified today that Section 233 is not aimed at stifling free speech or discussions about matters of public interest, noting that the court had said free speech is protected if it is for constructive discourse, sharing of ideas, and legitimate criticisms.

As a whole, Imtiaz said today’s decision is “very positive”, accepting that there is a need for regulation of online content: “But I think what’s important is the court has given some very clear guidelines on how the prosecution or regulators ought to look at these laws and not use them to suppress what could normally be considered acceptable. 

“So political speech, etc. she said, you can’t suppress all of that. So it’s really a high threshold, only things that are injurious should be targeted, and that’s now a way in which the court has read the Section and Sections of a similar nature, and that’s a welcome development,” he said.

While Section 233 has now been amended to criminalise “grossly offensive” online comments with the intent to annoy, Imtiaz said the Federal Court had looked at both versions of the law and this means that the court’s higher standards before anyone can be charged will also apply to the new version of Section 233.

“The difference is ‘grossly offensive’, previously it was ‘offensive’. So the court has said in both situations, the same principles apply, so this equally applies to the new Act,” he explained, confirming this means the prosecution must also show there was “intent” to annoy before it can actually charge someone for grossly offensive online remarks.

Quah said she was “very grateful that the Federal Court has acknowledged that I should not have been charged in the first place” and that the Section 233 charge against her was wrong and misplaced.

Since the Federal Court has now set higher standards before individuals can be prosecuted for “offensive” and annoying online comments, Quah said: “I really hope the Attorney General’s Chambers continues upholding that high threshold, because this law should not be used loosely in the future to silence constructive dissent.”

The Federal Court’s decision today comes as a result of Quah’s constitutional challenge against the words “offensive” and “annoy” in Section 233, after that law was used to charge her over her June 2020 Facebook post on alleged conditions in immigration detention centres amid the Covid-19 pandemic.

In 2022, Quah was given a “discharge not amounting to acquittal” (DNAA), which meant she was released from the charge but could be charged under the same law again.

The Federal Court today made it clear that Quah should not have been charged, as her Facebook post was not offensive, did not show intent to annoy, and was based on facts and opinion protected by the constitutional right to freedom of speech.