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.
Since this case involves matters of public interest, she said the Federal Court made no order on legal costs in this case.
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.
The Federal Court today made it clear that Quah should not have been charged under Section 233(1)(a) over her Facebook post in June 2020 on the spread of Covid-19 at immigration detention centres.
The Federal Court said Quah should not have been charged, as her Facebook post which involves facts and opinions is actually protected by the right to freedom of speech and expression under Article 10(1)(a).
The Federal Court said Quah’s Facebook post did not and could not fall under the Section 233(1)(a), as it was not offensive and she did not have the intent to annoy.
“It could not possibly amount to a communication that was ‘offensive with intent to annoy’, as the content was not ‘offensive’ and the ‘mens rea’ element of ‘intent to annoy’ was absent,” Nallini said.
But just because the prosecution had made a mistake in charging Quah under Section 233(1)(a), that does not mean the two words “offensive” and “annoy” in Section 233(1)(a) should be struck down or invalidated, the judge said.
The judge said removing the words “offensive” and “annoy” in Section 233(1)(a) would mean that communications intended to cause annoyance, harm or distress could not be regulated, and could risk leaving some online users being exposed to such communication.
To solve the problem of incorrect or unjustified prosecutions as seen in Quah’s case, the judge said the court can instead “read down” or narrow down the type of cases that can be charged under Section 233(1)(a).
The judge said this problem could also be solved by setting out the “thresholds” or the level that has to be fulfilled before the prosecution can charge someone under Section 233(1)(a).
In other words, by “reading down” the words “offensive with intent to annoy” in Section 233(1)(a), the Federal Court said that there must be “express intent to annoy another user or a body of users” in order to prosecute someone for such offensive online communication.
Earlier, Nallini had said the Federal Constitution’s Article 10(1)(a) right to free speech would protect speech that is for constructive purposes, such as furthering democratic dialogue, sharing information, expressing fact-based opinions or making opinions in an effort to search for the truth.
She said Article 10(1)(a) does not provide “absolute” freedom of speech, as this freedom does not include communications which are harmful or intended to cause harm to others; hate speech; or speech which offends religious sensitivities.
Nallini said however “discontent or anger” over the expression of political views and more controversial issues do not amount to harmful communication, as these political views are part of free speech and “promotes dialogue” to enhance democracy.
The judge said Section 233(1)(a) actually works to protect Malaysians from suffering harm from those harmful communications that are not protected by the right to free speech.
The judge listed examples of scenarios where Section 233(1)(a) would be necessary to protect Malaysians from harmful offensive communications with intent to annoy:
Online communications which “demeans, humiliates or puts down a particular racial segment of society and which is sent with intent to annoy one or more members of that racial grouping”, as it could escalate into a public furore and affect public order;
Online communications attacking the constitutional role of the royal institution in Malaysia, which has a constitutional monarchy system, with the intent to annoy, abuse, threaten or harass;
Offensive communication made with the intent to annoy an individual “repeatedly over a course of time, escalating to a call for that individual to harm or injure herself”.
“For the above reasons, we conclude that the words ‘offensive’ with intent to ‘annoy’ in Section 233(1)(a) of the CMA are not unconstitutional,” she said.
She said these two words do not go against Article 10(1)(a), as their main purpose is to protect online users from content that are not covered by freedom of speech and expression.
“We therefore reinstate the words ‘offensive’ and ‘annoy’ in Section 233(1)(a) of the CMA,” she said.
Ultimately, Nallini said that the Federal Court is saying that the right to freedom of speech and expression in Malaysia is to be protected, but that restrictions are built into this right.
She said the Federal Constitution only protects genuine expression under the right to freedom of speech, and not communication intended to cause harm especially in Malaysia’s plural society.
