PUTRAJAYA, Feb 6 — The Federal Court today decided that it is constitutional to make it a crime for anyone to make “offensive” remarks online with the “intent to annoy”, as it ruled that this will not go against Malaysians’ right to freedom of speech.

The Federal Court instead decided that keeping “offensive” online remarks with “intent to annoy” as a crime in Malaysia means that the government would be able to protect Malaysians from harmful communication such as hate speech and remarks that offend racial and religious sensitivities.

In other words, the Federal Court is saying the freedom of speech does not protect or include harmful communication, and this is why Malaysia should still be able to have a law to take action against such harmful communication. 

At the same time, the Federal Court said that online comments that involve political discourse or exchange of ideas remain protected under the right to free speech.

The Federal Court also stressed that the prosecution should only charge someone with the crime of offensive online remarks with “intent to annoy” if it can show that there was evidence of an “intent” to annoy another person.

Chief Justice Datuk Seri Wan Ahmad Farid Wan Salleh, who chaired a five-judge panel, said the panel’s decision was “unanimous”.

Federal Court judge Tan Sri Nallini Pathmanathan then delivered the brief summary of her judgment which was agreed by the panel, where she said the Federal Court was restoring the words “offensive” and “annoy” in the Communications and Multimedia Act’s (CMA) Section 233(1)(a).

“We allow the appeal in part, in that we reverse that part of the judgment of the Court of Appeal that struck out the words ‘offensive’ and ‘annoy’ from Section 233(1)(a) of the CMA for being inconsistent with Article 10(1)(a) of the Federal Constitution,” she said.

Section 233(1)(a) is the law which makes it a crime to make online offensive remarks with intent to annoy, while Article 10(1)(a) says every Malaysian has the right to freedom of speech and expression while also saying that Parliament can make laws to limit these rights.

”At the same time, we affirm the Court of Appeal’s decision that there was no basis to prosecute Heidy Quah on the grounds that her post was ‘offensive’ and communicated ‘with intent to annoy’,” she said.

The other judges on the panel today are Datuk Che Mohd Ruzima Ghazali, Datuk Mohd Nazlan Mohd Ghazali and Datuk Collin Lawrence Sequerah.

Today, the Federal Court decided on 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).

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.

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