On 6 February, the Malaysian Federal Court partly reversed a landmark 2025 decision of the Court of Appeal in Heidy Quah Gaik Li vs Government of Malaysia, representing a serious setback for freedom of expression in Malaysia.
The Court of Appeal had ruled in August 2025 that the words ‘offensive’ and ‘annoy’ in Section 233 of the Communications and Multimedia Act (CMA) 1998 were unconstitutional, as they breached two articles of the Federal Constitution: Article 8, which guarantees the right to equality, and Article 10(1)(a), which guarantees the right to freedom of speech and expression. The 2025 Court of Appeal judgment was viewed as a major win for freedom of expression in curbing the detrimental impacts of the CMA.Section 233 criminalises any online communication that is “obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person”, so freedom of expression and equality advocates viewed the ruling as an effective step towards protecting these freedoms.
Yet, the case took a disappointing turn this month, when the Federal Court ruled that words ‘offensive’ and ‘annoy’ in Section 233 of the CMA did not violate the Constitution. The overturning of the Court of Appeal’s decision was only partial, as the Federal Court did affirm the Court of Appeal’s finding that there was no basis to prosecute the Respondent in this appeal, Heidy Quah, on the grounds that her post was ‘offensive’ and communicated ‘with the intent to annoy’.
We welcome the Federal Court’s affirmation that political views and controversial issues are protected under Article 10(1)(a) of the Federal Constitution even if they caused discontent or anger. However, we are concerned that the same judgment appears to contradict this principle by seemingly exempting expression that targets the constitutional monarchy or offends religious sensitivities from the scope of protection, even though such expression can also be deeply political in nature. The Court also makes broad reference to ‘hate speech’ ‘not amount[ing] to free speech’, without distinguishing between different forms of ‘hate speech’. Some categories described as ‘hate speech’ may still fall within the scope of protected expression and should not be subject to blanket restrictions.
In this context, the Federal Court ruled that the problem of unwarranted prosecutions under Section 233(1)(a) of the CMA can be addressed by ‘reading down’ the section, namely only to cover cases in which there is ‘an express intent to annoy another user or a body of users’. Thereby, it held, Section 233(1)(a) can cover speech which is intended to cause injury or harm, and thus, according to the Court, fall outside the scope of the right to freedom of speech and expression. This finding preserves what we believe to be an unacceptably broad provision, which as our previous analysis of the CMA has shown, fails to meet the three-part test of legality, legitimacy, necessity and proportionality. It also increases the risk of continued applications such as those seen in the case of Heidy Quah.
Beyond the question of the unconstitutionality of the words ‘offensive’ and ‘annoy’, we continue to call for the full repeal of Section 233. ARTICLE 19, along with many other civil society organisations in Malaysia, has long campaigned and advocated for the repeal of Section 233 of the CMA and has consistently emphasised that it fails to meet international freedom of expression standards.
Over the years, Section 233 has been used to crack down on free speech and as a tool in clamping down on criticism and dissenting voices. The CMA creates a chilling effect on freedom of expression, causing individuals in Malaysia to self-censor, especially when using social media platforms, due to fear of criminal penalties or prosecution. Unless it is repealed, there can be no assurance that it will not be misused in the future to undermine freedom of expression.
Responding to the Court’s key arguments, ARTICLE 19 responds to and analyses the Court’s key arguments, as summarised in its press summary (view the PDF of the summary).