Malaysia’s Court of Appeal has struck down the use of the words “offensive” and “annoy” in Section 233 of the Communications and Multimedia Act (CMA) 1998, ruling them unconstitutional and unenforceable in future cases involving online speech.
The landmark judgment, delivered on 19 August 2025, arose from a constitutional challenge brought by activist Heidy Quah, who was charged under the CMA in 2021 and 2023 over social media posts about the treatment of detainees in immigration detention centres.
Section 233(1)(a) of the CMA previously criminalised online communications that were “offensive” in character and intended to “annoy” any person.
The Court found these terms inconsistent with Article 10(2)(a) of the Federal Constitution, which defines the scope of lawful restrictions on freedom of speech, and Article 8, which guarantees equality before the law.
Chairing the three-member panel, Federal Court judge Lee Swee Seng said:
“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.”
The Court declared the decision to have prospective effect, applying only to current and future cases. Past convictions will not be affected.
Quah, writing on her Facebook page shortly after the ruling, described the outcome as “history-making”:
“It’s been a long journey – from being charged in 2021 and 2023 under Section 233 for using the internet to offend and annoy when I wrote about conditions of detention centres, to then taking the government to court to challenge the constitutionality of the words ‘offensive’ and ‘annoying’.
Malaysia wouldn’t have this win today if it wasn’t for a great panel of judges and my incredible lawyers – Malik Imtiaz, New Sin Yew, Surendra, Lim Wei Jiet and so many more.
Today is history making. The Court of Appeal has struck out ‘offensive’ and ‘annoy’ from Section 233 of the Communications and Multimedia Act, ruling them unconstitutional and giving the decision prospective effect. This is a big win for our nation.
Here’s one step closer to upholding democracy and the freedom of speech in Malaysia. To God be the glory. Thank you everyone for standing in solidarity.”
The Court’s written judgment emphasised that speech should not be criminalised based on subjective reactions or personal sensitivities. It warned that such vague language results in arbitrary enforcement and suppresses lawful public discourse.
In paragraph 94, the judgment noted:
“Criminalising offensive speech made with the intent to annoy effectively permits the authorities to censor the internet from speech which certain quarters do not agree with… This would derogate from the proclaimed promise and guarantee that ‘nothing in this Act shall be construed as permitting the censorship of the internet’ under s 3(3) of the CMA.”
Paragraph 89 added:
“Section 233 of the CMA does not provide any standards as to what amounts to offensive or what would amount to an intent to annoy… Every speech would have to be sanitised irrespective of its truth so as not to attract the sanction of s 233(1).”
The judgment also affirmed the role of expression in democratic societies. In paragraph 113, the Court stated:
“Speeches, writings and communications are part and parcel of the space that democratic states guarantee their citizens…”
Human rights organisation ARTICLE 19 welcomed the ruling, stating:
“This presents a valuable opportunity for the government and the authorities to enhance their practices by adhering to the Court’s decision, repealing amended Section 233, and reviewing the overall amendments to the CMA.”
ARTICLE 19 further warned that the amended Section 233, which was gazetted on 7 February 2025 following legislative changes in December 2024, still falls short of international standards.
While the amended version replaces the invalidated terms with “grossly offensive” and “hate speech”, the organisation described the new language as vague, overly broad, and still open to arbitrary enforcement.
Quah was represented by a legal team comprising Datuk Malik Imtiaz Sarwar, Surendra Ananth, New Sin Yew, and Nur Izni Syazwani.
Lim Wei Jiet and Nevyn Vinosh Venudran represented the Clooney Foundation for Justice and Suara Rakyat Malaysia as amici curiae.
The Malaysian Bar also held a watching brief.
The government was represented by senior federal counsel Liew Horng Bin, who stated that he would be seeking instructions on whether to appeal the decision to the Federal Court.
Fellow counsels Farhati Ahmad Tajuddin and Nordalina Ali also appeared for the state.
While the ruling invalidates the two terms from the original CMA, rights groups argue that deeper reform is necessary.
ARTICLE 19 and others have long campaigned for the full repeal of Section 233, citing its chilling effect on free expression in Malaysia.
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