PUTRAJAYA, Feb 6 — The Malaysian Communications and Multimedia Commission (MCMC) is “pleased” with the Federal Court’s decision today, as it means the regulator will still be able to act against offensive online remarks that cause harm.
The Federal Court today restored the words “offensive” and “annoy” in Section 233(1)(a) of the Communications and Multimedia Act (CMA), which means making “offensive” online remarks because you want to “annoy” others is still a crime in Malaysia.
MCMC’s lawyer Benjamin John Dawson said the Federal Court has now given clear guidance on when the authorities can act against “offensive” online comments with the “intent to annoy”, and added that his client would follow this guidance when regulating harmful content online.
“MCMC is pleased with the judgment of the Federal Court, because the proliferation of harmful and offensive comments in a digital sphere has reached a very alarming level, and if the law is held invalid, there’s no way for the enforcement authorities to curb such harmful comments.
“So now the position has been clarified, then of course MCMC will apply the law in accordance with the guidance to be fulfilled under Section 233,” he told Malay Mail when met outside the courtroom after the Federal Court’s decision.
Explaining the guidance given, Benjamin said the Federal Court clarified that there is a need to prove that there was “intent to annoy”, and that this is targeted specifically at offensive online comments that were made with the aim of causing distress.
“And then they also clarified what is the meaning of ‘intent to annoy’ — to cause emotional and psychological distress,” he said.
He added that this means that a “joke” would not be a crime under Section 233 since it is not aimed at causing any emotional and psychological distress.
Benjamin said the Federal Court’s decision today makes the law clear for both the people who post comments online and for how the regulator can manage such comments.
“So it doesn’t mean the regulator can have absolute powers, you have to prove the ‘mens rea’ element,” he said, referring to the Federal Court saying that the “intent” to annoy must be proven before a person can be charged in court under Section 233 for the crime of offensive online comments with the intent to annoy.
Benjamin said the guidance by the Federal Court today is on how MCMC can identify whether a case or online remark is a crime that falls under Section 233(1).
Ultimately, he said the Federal Court’s decision had struck a balance between Malaysians’ right to freedom of speech under the Federal Constitution’s Article 10(1), and the “need for regulation because of the dangers it might pose to society and to the nation” and to maintain “public order”.
“The court is basically saying, this is how we strike the balance between the rights of freedom of speech under Article 10(1) and the rights of the regulator to ensure that certain types of comments, especially on race and religious sensitive issues can be managed, can be criminalised. And then also rulers and all that,” he said.
The Federal Court had said Section 233(1)(a) was needed to protect Malaysia’s online users from speech that is not protected by the right to freedom of speech, such as hate speech.
The Federal Court also said the Section 233(1)(a) offence would cover these other comments:
- online racial remarks that are demeaning and intended to annoy and potentially disrupt public order;
- comments attacking the constitutional monarchy system’s constitutional role with intent to annoy, abuse, threaten or harass; and
- online remarks aimed at “repeatedly” annoying a person and to call that person to harm or injure themselves.
In summing up the impact of the ruling today, Benjamin said: “This is an immensely important decision on fundamental liberties, namely on the inherent limits on the rights of freedom of speech.
“Whilst affirming constitutional supremacy, the court also addresses the extent and limits in which the court can interfere with legislations that restrict those rights, and providing a roadmap to MCMC on what constitutes an offence under Section 233(1) of the CMA,” he said.
Among other things, he explained that the Federal Court had said that freedom of speech is not absolute as it does not cover sensitive speech that could provoke or cause racial and religious disharmony.
He had also explained that the Federal Court had said that Section 233 is constitutional because Article 10(2) permits laws like Section 233 to restrict the right to free speech in the interest of public order.
For online remarks such as hate speech, the CMA’s Section 233 is meant to “shield” Internet users from hate speech, he explained.
The Federal Court’s decision today involves activist Heidy Quah’s constitutional challenge against the two words “offensive” and “annoy” in Section 233(1)(a) of the CMA, and the government appealed against the Court of Appeal’s August 2025 decision to strike out those two words.
Last month, the Federal Court had granted MCMC’s application to be an intervener in this appeal, which meant the regulator could become part of the court case and could provide its arguments to the court.
Apart from Benjamin, lawyers Kresha Paskaren and Nor Syazana Jamaluddin also represented MCMC today.
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