PUTRAJAYA — The Court of Appeal today ruled unanimously that it is no longer a crime in Malaysia to make “offensive” online comments intended to “annoy”.
The court struck down parts of Section 233 of the Communications and Multimedia Act 1998, which criminalised “offensive” and “annoying” online speech.
Presiding over a three-judge panel, Federal Court judge Datuk Lee Swee Seng declared that the terms “offensive” and “annoy” in Section 233 were unconstitutional, as they violated the Federal Constitution’s Article 10(2)(a) on freedom of speech, Malay Mail Online reported.
“We find the impugned words ‘offensive’ and ‘annoy’ in Section 233 constituting an offence to be violative of Article 10(2)(a) of the Federal Constitution, read with Article 8,” Judge Lee was quoted as saying.
“It is not a permissible restriction to freedom of speech under our Federal Constitution.”
The ruling, which is set to have prospective effect, means it will apply only to ongoing or future court cases involving the offence of “offensive” online speech. Past cases, however, will not be affected by this decision.
Judge Lee emphasised that truth must take precedence, even if it causes discomfort. “A premium should be given to truth, and the fact that some truths may be unpalatable does not justify criminalising the messenger merely because some masses of the people do not like the message,” he remarked.
He further pointed out the absence of a uniform standard for what constitutes “offensive” speech, highlighting that what one person finds offensive may not be the same for another, particularly in a diverse society.
The judge noted that Section 233 failed to provide clear criteria on what is considered “offensive” or what constitutes “intent to annoy”. He warned that without these guidelines, the enforcement of the law could lead to arbitrary decisions, effectively “sanitising” speech to avoid potential criminal liability.
The ruling also acknowledged that regulating online speech without objective standards could lead to government censorship and the suppression of free expression. “Such regulation would result in a chilling effect over the right to freedom of speech and expression, protected under Article 10(1)(a) of the Federal Constitution,” Judge Lee stated.
While today’s decision has removed the words “offensive” and “annoy” from Section 233, the judge noted that untrue online comments could still lead to charges under Section 233(1) of the Act if they are made with the intent to abuse, threaten, or harass another person.
The other judges on the panel were Court of Appeal judges Datuk Hashim Hamzah and Datuk Azman Abdullah.
When asked if the Malaysian government intended to appeal the decision, senior federal counsel Liew Horng Bin said he would be seeking instructions on whether to file an appeal at the Federal Court.
The constitutional challenge, which resulted in today’s victory, was brought by activist Heidy Quah, represented by lawyers Datuk Malik Imtiaz Sarwar, Surendra Ananth, New Sin Yew, and Nur Izni Syazwani. The Malaysian Bar was represented by lawyer Kee Hui Yee, while the Clooney Foundation for Justice and Suara Rakyat Malaysia participated as amicus curiae, with lawyers Lim Wei Jiet and Nevyn Vinosh Venudran assisting the court.
The ruling comes at a time when the Communications and Multimedia Act is being updated, with the term “grossly offensive” now replacing the previously struck-down words in Section 233. – August 19, 2025