KUALA LUMPUR — The Federal Court has ruled that the words “offensive” and “annoy” under Section 233 of the Communications and Multimedia Act (CMA) 1998 (Act 588) are constitutional, overturning a Court of Appeal decision last year.
The original case was brought by refugee rights activist Heidy Quah, who was previously charged over her criticism on Facebook of the authorities. In 2024, she sought to nullify parts of that section of the CMA to uphold freedom of speech.
The Federal Court’s five-member panel today ruled that the two words which criminalises the online transmission of offensive comments, were constitutional, Bernama reports.
Delivering the court’s unanimous decision, Justice Tan Sri Nallini Pathmanathan said the purpose of Section 233(1)(a) of the Act is to regulate the improper use of network facilities and services to ensure a safe online environment.
She said the provision serves to protect individuals and communities from harm arising from such misuse, adding that it targets communications that fall outside the scope of the constitutionally protected right to freedom of speech and expression.
Section 233 criminalises the use of network facilities or services to transmit any communication that is obscene, indecent, false, menacing or offensive in character, with intent to annoy, abuse, threaten or harass another person.
However, Nallini said that in the case involving Quah, the court is of the view that the activist should not have been charged, as the content of her Facebook post fell within the protection of Article 10(1)(a) of the Federal Constitution on the right to freedom of speech and expression, and could not form the basis of a charge under Section 233(1)(a) of the CMA.
Other judges on the apex panel today were Chief Justice Datuk Seri Wan Ahmad Farid Wan Salleh, and judges Datuk Che Mohd Ruzima Ghazali, Datuk Mohd Nazlan Mohd Ghazali and Datuk Collin Lawrence Sequerah.
The Court of Appeal in August 2025 found that “offensive” and “annoy” violate freedom of speech under the Federal Constitution, ruling that they were ague and did not meet other constitutional provisions on restricting free speech that threatened public order.
Quah had appeal against the high court’s 2023 decision, which had dismissed her constitutional challenge.
Last October, the government filed to appeal the Court of Appeal’s decision.
In July 2021, Quah, 31, was charged in the Kuala Lumpur Sessions Court for allegedly posting “offensive” content on Facebook.
However, in April 2022, the Sessions Court granted her a discharge not amounting to an acquittal (DNAA) after finding that the charge under Section 233(1)(a) was defective. – February 6, 2026