Don't shoot the messenger: Court of Appeal says ‘offensive' online remarks to ‘annoy' can't be a crime in Malaysia
The Court of Appeal said Section 233 gave no objective standard for what is 'offensive', warning it could criminalise speaking the truth and stifle free speech just because someone feels the online remarks are offensive.
The court's decision today only applies to ongoing and future cases where individuals face charges under Section 233. The Malaysian government can still appeal to the Federal Court, but it is not known yet if it would appeal.
PUTRAJAYA, Aug 19 — The Court of Appeal today unanimously ruled that it is no longer a crime in Malaysia to make 'offensive' online comments with the intention to 'annoy', and struck down parts of the Communications and Multimedia Act 1998's Section 233 that had criminalised 'offensive' and annoying online speech.
Federal Court judge Datuk Lee Swee Seng, chairing a three-judge panel, said the court found these words 'offensive' and 'annoy' in Section 233 to be unconstitutional, as they go against the Federal Constitution's Article 10(2)(a).
'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.
'It is not a permissible restriction to freedom of speech under our Federal Constitution,' he said, before striking down or making these two words in Section 233 invalid.
'We declare this decision to have prospective effect, so as not to resurrect the past,' he added.
The Court of Appeal's decision's prospective effect means it will only affect ongoing or future court cases involving the crime of 'offensive' online speech intended to 'annoy' under Section 233, and will not affect past cases where the court had decided on whether those charged are guilty or not of such crimes.
In reading the broad grounds of his judgment, judge Lee pointed out that there may be some people who feel offended and annoyed even when what is spoken is the truth, and cautioned against making it a crime to speak the truth.
'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,' the judge said.
Among other things, the judge said that there is no uniform standard in society on what is 'offensive', and what a person finds offensive may not be offensive to another person in a diverse society.
The judge said Section 233 does not give any standards on what would be 'offensive' or what would be an 'intent to annoy', and said freedom of speech becomes illusory and enforcement becomes arbitrary when all types of speech could potentially be 'offensive' if a single person feels it is offensive.
The judge cautioned that this would result in every speech having to be 'sanitised' — whether it is true or not — to avoid committing a crime under Section 233.
Without an objective standard on what is 'offensive', the judge said regulating online civil discourse would become a 'euphemism' for the authorities to police and censor undesirable speeches, which he said would result in a 'chilling effect' over the right to freedom of speech and expression which is protected under the Federal Constitution's Article 10(1)(a).
The judge pointed out that if online remarks are found to be untrue, a person can still be charged under the CMA's Section 233(1) for making comments that are false with intent to abuse, threaten or harass another person.
The two other judges on the panel today are Court of Appeal judges Datuk Hashim Hamzah and Datuk Azman Abdullah.
When asked by reporters if the Malaysian government will be appealing today's decision, senior federal counsel Liew Horng Bin said he would be seeking instructions on whether to file an appeal at the Federal Court.
Lawyers Datuk Malik Imtiaz Sarwar, Surendra Ananth, New Sin Yew and Nur Izni Syazwani represented activist Heidy Quah in her successful constitutional challenge today against the words 'offensive' and 'annoy' in Section 233.
Lawyer Kee Hui Yee held a watching brief for the Malaysian Bar, while lawyers Lim Wei Jiet and Nevyn Vinosh Venudran represented Clooney Foundation for Justice and Suara Rakyat Malaysia in assisting the Court of Appeal as amicus curiae.
While the Court of Appeal's decision today has effectively removed the words 'offensive' and 'annoy' from Section 233, there is now a newer version of Section 233 that uses the words 'grossly offensive'.
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