ARTICLE 19 welcomes the Malaysian Appeal Court’s decision in Heidi Quah Gaik Li vs Government of Malaysia, which marks a significant victory for freedom of expression in Malaysia. In a unanimous ruling on 19 August 2025, the Court found that the words ‘offensive’ and ‘annoy’ in Section 233 of the Communications and Multimedia Act (CMA) 1998 are unconstitutional, as they breach two articles of the Federal Constitution: Article 8, which guarantees the right to equality and Article 10, which guarantees the right to freedom of speech and expression. 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.
The Court determined that the terms ‘offensive’ and ‘annoy’ did not comply with Article 10(2)(a) of the Federal Constitution, which sets out the requirements for permissible restrictions on the right to freedom of speech and expression.
The decision also means that ‘offensive’ online comments with the intention to ‘annoy’ are no longer considered a crime in Malaysia. The Court has invalidated these specific words from Section 233 of the CMA that criminalised ‘offensive’ and ‘annoying’ online speech.
The Court also states that this decision will only influence ongoing or future court cases related to the crime of ‘offensive’ online speech intended to ‘annoy’ under Section 233. This decision will, however, not affect past instances in which the court has already determined the guilt or innocence of those charged with such crimes.
The Court also made several other important observations related to Section 233 of the CMA. Some of the key passages of the judgment, worth quoting in full, are:
- Regarding incompatibility with the objective and purpose of the law: ‘94. 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 just because of the sensitivities of some segments of society. 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.’
- Regarding the lack of clarity of terms: ‘89. 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. When all types of speeches could potentially be offensive if a single person finds it so then freedom of speech has become illusory and enforcement becomes arbitrary. Every speech would have to be sanitised irrespective of its truth so as not to attract the sanction of s 233(1).’
- Regarding the importance of free speech for protecting democracies: ‘113. Speeches, writings and communications are part and parcel of the space that democratic states guarantee their citizens so that in the contestations of ideas and thoughts, we may have the courage to change the things we can no longer accept, the grace to accept the things we cannot change and the wisdom to discern one from the other.’
- Regarding the importance of an enabling environment for people to accept ideas or opinions that they disagree with: ‘111. What is needed is not to water down the truth or to mellow it, but rather to work on the offended so as to help him mature to accepting the truth. A factually accurate speech could still be offensive. Should we then seal our lips forever or ignore it altogether as sweeping it under the carpet for fear that it would be too sensitive to some segments of society?’
Over the years, Section 233 has been used to crack down on free speech and as a tool in clamping down on criticism, artistic expression, 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.
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. Terms such as ‘offensive’ and ‘annoy’ are near-infinite in scope and hinge upon highly subjective terms that are open to a broad range of interpretation. As the Court rightly pointed out, these are not permissible restrictions under the Federal Constitution. The same is true under international law. Any restrictions on freedom of expression must serve a legitimate legislative objective which is of sufficient importance to justify limiting a fundamental right.
Section 233, as it stands now, continues to be extremely concerning
There is a revised Section 233 following amendments to the entire CMA in December 2024, which has been gazetted since 7 February 2025; the amended Section 233 continues to fall short of the three-part test of legality, legitimacy, necessity, and proportionality. Instead, it remains vague and overly broad in scope. It relies on highly subjective terms that can be interpreted in various ways, despite the accompanying explanatory notes, increasing the risk of arbitrary application and enforcement. We are particularly concerned about the inclusion of ‘hate speech’ in the amended provision, as the definition of what constitutes ‘grossly offensive’ does not align with international standards for restrictions on speech and expression.
However, the decision by the Court is still highly relevant and timely. The decision also offers guidance to the police on how to apply Section 233 in future investigations, as well as prosecutors and lower court judges, as they are faced with having to enforce overbroad provisions.
The Appeal Court’s decision today highlights the ongoing advocacy efforts of ARTICLE 19 and other civil society organisations in Malaysia, which aim to foster an environment that supports free expression, both online and offline. We urge the government to establish a framework that promotes and protects freedom of speech and expression, rather than relying on legislation like the CMA, which is being used arbitrarily to suppress these rights. As the Court stated, in any diverse society, there will be a variety of opinions and expressions. The role of the State is to safeguard speech and expression, as well as fundamental rights. While the government may impose certain restrictions to protect legitimate interests such as national security and public order, these limitations must be narrowly defined, evidence-based, and proportionate.
Background
The challenge to Section 233 was brought by Refuge for Refugees co-founder Heidy Quah after being charged on 27 July 2021, under Section 233(1)(a) of the CMA for a Facebook post she uploaded on 5 June 2020. She pleaded not guilty to the charges at the Kuala Lumpur Sessions Court and paid RM 2,000 bail (approximately 500 USD). Heidy’s post recounts a mother’s description of horrific conditions she and her child faced in an immigration detention centre. Heidy was first questioned about the post on 7 July 2020 at the Putrajaya District police headquarters, more than a year before she was formally charged. In April 2022, the Sessions Court granted the human rights activist a discharge not amounting to an acquittal (DNAA) because the charge under Section 233(1)(a) was deemed defective.