Government of Malaysia vs Heidy Quah Gaik Li
(In the Federal Court of Malaysia, (Appellate Jurisdiction), Civil Appeal No. 08(f)-35-02/2024(W)
An Analysis on Section 233 of the Communication and Multimedia Act 1998
By:
1. Dr. Sharen Alzalip (Managing Partner) DBA (UBAS Varsovia), MBA (UWS), LL.B Hons (IIUM)
2. Mawaddah Hani Sayuti (Legal Associate) LL.B (Hons) (UUM)
3. Wan Nurul Zulaika Wan Kamaruzzaman (Trainee Associate) LL.B (Hons) (IIUM)
February 16, 2026
Background
The constitutional challenge to Section 233(1)(a) of the Communications and Multimedia Act 1998 (“CMA”) was initiated by Heidy Quah, co-founder of Refuge for Refugees, after she was charged on 27 July 2021 under Section 233(1)(a) of the CMA for a Facebook post published on 5 June 2020 concerning the spread of COVID-19 at immigration detention centers. The charge was first brought before the Sessions Court but was struck out.
She subsequently commenced proceedings in the High Court, seeking a declaration that the words “offensive” and “annoy” in Section 233(1)(a) of the CMA were unconstitutional. The High Court dismissed her application, whereas the Court of Appeal allowed it. The Government of Malaysia, as the appellant, appealed to the Federal Court against the decision of the Court of Appeal.
Section 233 of the Malaysian Communications and Multimedia Commission Act (1998) (“CMA”)
Prior to the Communications and Multimedia (Amendment) Act 2025 (“2025 Amendment”), Section 233 of CMA reads as follow[1]:
233. Improper use of network facilities or network service, etc.
(1) A person who -
(a) by means of any network facilities or network service or applications service knowingly -
(i) makes, creates or solicits; and
(ii) initiates the transmission of,
any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or
(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address,
commits an offence.
(2) A person who knowingly -
(a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or
(b) permits a network service or applications service under the person 's control to be used for an activity described in paragraph (a),
commits an offence.
(3) A person who commits an offence under this section shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day during which the offence is continued after conviction.
RULINGS
The legal standing of section 233 of the CMA has undergone a rigorous tug-of-war within the Malaysian judiciary. From the High Court to the Federal Court, the interpretation of what constitutes "offensive" communication has shifted, ultimately landing on a nuanced balance between state regulation and constitutional free speech.
1. High court
The High Court affirmed the constitutionality of Section 233 of the CMA. The Court dismissed the application and held that the Respondent’s argument that the impugned words were void for vagueness per se was misguided. The presiding judge maintained that the impugned words were sufficiently clear when viewed through the lens of Malaysia’s local context, surrounding circumstances and the principles on which the CMA was drafted.
2. Court of Appeal
The legal landscape shifted significantly to the appellate level. The Court of Appeal (“COA”) unanimously ruled that the prohibition against "offensive" communication with intent to "annoy" under section 233(1)(a) of the CMA is unconstitutional. The COA determined that these provisions exceeded permissible restrictions to freedom of expression and were consequently incompatible with Article 10 (Freedom of Speech, Assembly and Association) and Article 8 (Equality) of the Federal Constitution (“FC”).
3. Federal court
In the landmark ruling, the Federal Court overturned the Court of Appeal's decision, reinstating constitutionality of Section 233 of CMA. The court was of the view that these words are necessary to protect people from real online harm such as doxxing, hate speech and harassment. The Court agreed that it remains an offence under Malaysian law to publish online content that is offensive in nature with the intention of causing annoyance to others.
While the Federal Court ultimately upheld the constitutionality of Section 233, it simultaneously delivered a landmark victory for civil liberties by exonerating activist Heidy Quah. The court’s reasoning centered on the substance and intent of Heidi Quah’s communication. The bench observed that her Facebook post regarding conditions in detention centres was not a gratuitous attempt to harass, but rather an expression grounded in factual observation and matters of significant public interest. By affirming that her speech was protected under the Federal Constitution, the Court clarified that sharing uncomfortable truths does not equate to the criminal standard of an "intent to annoy."
This distinction serves as a critical safeguard as it ensures that while the law remains a tool to combat malicious actors, it cannot be weaponized to silence whistleblowers or those engaging in legitimate public discourse.
ANALYSIS AND RECOMMENDATIONS
(1) Analysis of Section 233 of the CMA and 2025 Amendments
(a) The Old Section 233 (1) (a) and Section 233 (3) of the CMA
Under the old Section 233 (1) (a) of the CMA (prior to the 2025 Amendment), it criminalizes the improper use of network facilities, network services or application by a person to produce and transmit any communication (i.e. comment, request, suggestion) that is obscene, indecent, false, menacing or offensive with the intention of causing annoyance, abuse and harassment to another individual. Upon conviction, such individuals shall be liable to a fine not exceeding RM50,000 or to imprisonment for a term not exceeding one (1) year or to bothand shall further be liable to a daily fine of RM1,000 for each day the offence continues after conviction as per Section 233 (3) of the CMA.
(b) The 2025 Amendment to the Old Section 233 (1) (a) and Section 233 (3) of the CMA
With a view to strengthening regulations on harmful content and spam in the online sphere, the 2025 Amendment revised the Old Section 233 (1)(a) by replacing the word “offensive” with “grossly offensive” and by substituting the phrase “or to harass another person” with “, harass or commit an offence involving fraud or dishonesty against, any person”. [2] The amendment provides clearer guidance on the types of contents that are prohibited by introducing explanations to the types of prohibited contents within the Section and explicitly extends the scope of the provision to cover acts involving fraud or dishonesty against any person.
The 2025 Amendment also revised the sentencing provisions in the Old Section 233 (3) by introducing Section 233 (2) which imposes higher punishments than before where it says “(2) A person who commits an offence under subsection (1) shall, on conviction, be liable to a fine not exceeding RM500,000 or to imprisonment for a term not exceeding two (2) years or to both and shall also be liable to a further fine of RM5,000 for every day during which the offence is continued after conviction.”[3]
(2) Recommendations
While we support the enforcement efforts of the MCMC, we are of the view that there is a critical need for clear guidelines and explanatory frameworks to ensure that enforcement under the amended provision is consistent, proportionate and transparent. Given the severity of the amended penalties which is now heftier than before, it is apt and essential for the MCMC to consider non-criminal remedies as preliminary measures, such as issuing warnings, directing content takedowns or facilitating mediation before initiating court proceedings. These measures would uphold the principles of proportionality and fairness, mitigate potential chilling effects on lawful online expression, and ensure that criminal sanctions are reserved for the most serious or repeated breaches.
Although the applicability of the Federal Court’s decision in this case may be limited following the 2025 Amendment, its underlying principles remain instructive and may serve as guidance for individuals engaging in online communication. In particular, Paragraphs 213 and 214 of the Federal Court judgment emphasise that individuals bear responsibility for the content they publish online. The Court affirmed that communication in the digital sphere must be assessed based on the intention to annoy, harm and/or insult another user or a body of users. Only where such intention is present does “offensive” communication acquire a sufficient basis for prosecution.
The learned judge upheld and proved that Heidy Quah posting on Facebook in 2020 in regard to the immigration detention centre that lack of safety and health precautions was proven just a mere facts and is within the freedom of speech under Article 10 of Federal Constitution (“FC”). The Court explicitly stated that the prosecution against Heidy Quah was "misplaced, inappropriate and ill-founded" because her post did not meet the required threshold of malice.
We recognise and appreciate the Federal Court’s objective in criminalising offensive content that is intended to cause annoyance, in line with the broader aim of maintaining a safe digital environment. However, we are of the view that a clearer guidance on enforcement thresholds must be provided, particularly in light of the 2025 Amendment. In addition, we recommend that the MCMC consider incorporating a requirement of actual harm caused to the affected user or group of users, given that the punishment under Section 233 (2) is now substantially more severe.
Nevertheless, as the online landscape continues to evolve, there is a necessity of having robust regulatory mechanisms in place. At the same time, there should be a parallel effort to strengthen public education, whether through on-site initiatives or online platforms, on lawful online conduct. This would help ensure that individuals are fully aware of the legal consequences of what they post and promote greater accountability in digital communication.
Ultimately, the 2025 Amendment should not be viewed solely as a punitive tool but as part of a broader regulatory framework aimed at promoting responsible online conduct. With proper guidance from the regulators and increased public awareness of lawful online behaviour, the amended provision can achieve its intended purpose of fostering a safer digital environment without unduly restricting legitimate speech.
To further mitigate the risks of digital volatility, one possible idea is for the MCMC to consider setting out a regulatory framework requiring global social media platforms such as Meta Platforms to adopt a keyword and sentiment detection system. The system would flag posts containing historically sensitive triggers particularly those relating to race, religion, or grossly offensive language before the content is published.
A key feature of this idea is a double confirmation barrier where instead of automatically blocking content, the system would prompt users to make a conscious choice which is either to cancel the post or to proceed after being warned. This short pause is designed to disrupt impulsive or emotionally driven postings and encourage a moment of reflection. From a legal perspective, choosing to proceed despite the warning could also serve as a clear indicator of intention, helping to distinguish careless remarks from deliberate misconduct. Ultimately, this approach favours informed and intentional digital participation over invisible censorship.
In summary, keeping our digital spaces safe shouldn't come at the cost of clear and fair rules. While the tougher penalties in the 2025 Amendment aim to protect us, they also make it more important than ever for the MCMC to be crystal clear about where the line is drawn. By combining smart technology and better public awareness with fair oversight, we can help Malaysians stay accountable online without silencing the voices and conversations that matter most.
For further information or tailored legal advice regarding compliance with the Malaysian Communications and Multimedia Commission Act (1998) and Communications and Multimedia (Amendment) Act 2025, please contact us for further discussion.
[1] Section 233 of CMA
[2] Section 233(1)(a) of 2025 Amendment
[3] Section 233(2) of 2025 Amendment
Disclaimer: The contents are for general information purposes only and do not constitute legal advice and should not be relied upon as such.
Credits: The featuring photos in this article are taken from internet sources for illustration purpose.
The constitutional challenge to Section 233(1)(a) of the Communications and Multimedia Act 1998 (“CMA”) was initiated by Heidy Quah, co-founder of Refuge for Refugees, after she was charged on 27 July 2021 under Section 233(1)(a) of the CMA for a Facebook post published on 5 June 2020 concerning the spread of COVID-19 at immigration detention centers. The charge was first brought before the Sessions Court but was struck out.
She subsequently commenced proceedings in the High Court, seeking a declaration that the words “offensive” and “annoy” in Section 233(1)(a) of the CMA were unconstitutional. The High Court dismissed her application, whereas the Court of Appeal allowed it. The Government of Malaysia, as the appellant, appealed to the Federal Court against the decision of the Court of Appeal.
Section 233 of the Malaysian Communications and Multimedia Commission Act (1998) (“CMA”)
Prior to the Communications and Multimedia (Amendment) Act 2025 (“2025 Amendment”), Section 233 of CMA reads as follow[1]:
233. Improper use of network facilities or network service, etc.
(1) A person who -
(a) by means of any network facilities or network service or applications service knowingly -
(i) makes, creates or solicits; and
(ii) initiates the transmission of,
any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or
(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address,
commits an offence.
(2) A person who knowingly -
(a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or
(b) permits a network service or applications service under the person 's control to be used for an activity described in paragraph (a),
commits an offence.
(3) A person who commits an offence under this section shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day during which the offence is continued after conviction.
RULINGS
The legal standing of section 233 of the CMA has undergone a rigorous tug-of-war within the Malaysian judiciary. From the High Court to the Federal Court, the interpretation of what constitutes "offensive" communication has shifted, ultimately landing on a nuanced balance between state regulation and constitutional free speech.
1. High court
The High Court affirmed the constitutionality of Section 233 of the CMA. The Court dismissed the application and held that the Respondent’s argument that the impugned words were void for vagueness per se was misguided. The presiding judge maintained that the impugned words were sufficiently clear when viewed through the lens of Malaysia’s local context, surrounding circumstances and the principles on which the CMA was drafted.
2. Court of Appeal
The legal landscape shifted significantly to the appellate level. The Court of Appeal (“COA”) unanimously ruled that the prohibition against "offensive" communication with intent to "annoy" under section 233(1)(a) of the CMA is unconstitutional. The COA determined that these provisions exceeded permissible restrictions to freedom of expression and were consequently incompatible with Article 10 (Freedom of Speech, Assembly and Association) and Article 8 (Equality) of the Federal Constitution (“FC”).
3. Federal court
In the landmark ruling, the Federal Court overturned the Court of Appeal's decision, reinstating constitutionality of Section 233 of CMA. The court was of the view that these words are necessary to protect people from real online harm such as doxxing, hate speech and harassment. The Court agreed that it remains an offence under Malaysian law to publish online content that is offensive in nature with the intention of causing annoyance to others.
While the Federal Court ultimately upheld the constitutionality of Section 233, it simultaneously delivered a landmark victory for civil liberties by exonerating activist Heidy Quah. The court’s reasoning centered on the substance and intent of Heidi Quah’s communication. The bench observed that her Facebook post regarding conditions in detention centres was not a gratuitous attempt to harass, but rather an expression grounded in factual observation and matters of significant public interest. By affirming that her speech was protected under the Federal Constitution, the Court clarified that sharing uncomfortable truths does not equate to the criminal standard of an "intent to annoy."
This distinction serves as a critical safeguard as it ensures that while the law remains a tool to combat malicious actors, it cannot be weaponized to silence whistleblowers or those engaging in legitimate public discourse.
ANALYSIS AND RECOMMENDATIONS
(1) Analysis of Section 233 of the CMA and 2025 Amendments
(a) The Old Section 233 (1) (a) and Section 233 (3) of the CMA
Under the old Section 233 (1) (a) of the CMA (prior to the 2025 Amendment), it criminalizes the improper use of network facilities, network services or application by a person to produce and transmit any communication (i.e. comment, request, suggestion) that is obscene, indecent, false, menacing or offensive with the intention of causing annoyance, abuse and harassment to another individual. Upon conviction, such individuals shall be liable to a fine not exceeding RM50,000 or to imprisonment for a term not exceeding one (1) year or to bothand shall further be liable to a daily fine of RM1,000 for each day the offence continues after conviction as per Section 233 (3) of the CMA.
(b) The 2025 Amendment to the Old Section 233 (1) (a) and Section 233 (3) of the CMA
With a view to strengthening regulations on harmful content and spam in the online sphere, the 2025 Amendment revised the Old Section 233 (1)(a) by replacing the word “offensive” with “grossly offensive” and by substituting the phrase “or to harass another person” with “, harass or commit an offence involving fraud or dishonesty against, any person”. [2] The amendment provides clearer guidance on the types of contents that are prohibited by introducing explanations to the types of prohibited contents within the Section and explicitly extends the scope of the provision to cover acts involving fraud or dishonesty against any person.
The 2025 Amendment also revised the sentencing provisions in the Old Section 233 (3) by introducing Section 233 (2) which imposes higher punishments than before where it says “(2) A person who commits an offence under subsection (1) shall, on conviction, be liable to a fine not exceeding RM500,000 or to imprisonment for a term not exceeding two (2) years or to both and shall also be liable to a further fine of RM5,000 for every day during which the offence is continued after conviction.”[3]
(2) Recommendations
While we support the enforcement efforts of the MCMC, we are of the view that there is a critical need for clear guidelines and explanatory frameworks to ensure that enforcement under the amended provision is consistent, proportionate and transparent. Given the severity of the amended penalties which is now heftier than before, it is apt and essential for the MCMC to consider non-criminal remedies as preliminary measures, such as issuing warnings, directing content takedowns or facilitating mediation before initiating court proceedings. These measures would uphold the principles of proportionality and fairness, mitigate potential chilling effects on lawful online expression, and ensure that criminal sanctions are reserved for the most serious or repeated breaches.
Although the applicability of the Federal Court’s decision in this case may be limited following the 2025 Amendment, its underlying principles remain instructive and may serve as guidance for individuals engaging in online communication. In particular, Paragraphs 213 and 214 of the Federal Court judgment emphasise that individuals bear responsibility for the content they publish online. The Court affirmed that communication in the digital sphere must be assessed based on the intention to annoy, harm and/or insult another user or a body of users. Only where such intention is present does “offensive” communication acquire a sufficient basis for prosecution.
The learned judge upheld and proved that Heidy Quah posting on Facebook in 2020 in regard to the immigration detention centre that lack of safety and health precautions was proven just a mere facts and is within the freedom of speech under Article 10 of Federal Constitution (“FC”). The Court explicitly stated that the prosecution against Heidy Quah was "misplaced, inappropriate and ill-founded" because her post did not meet the required threshold of malice.
We recognise and appreciate the Federal Court’s objective in criminalising offensive content that is intended to cause annoyance, in line with the broader aim of maintaining a safe digital environment. However, we are of the view that a clearer guidance on enforcement thresholds must be provided, particularly in light of the 2025 Amendment. In addition, we recommend that the MCMC consider incorporating a requirement of actual harm caused to the affected user or group of users, given that the punishment under Section 233 (2) is now substantially more severe.
Nevertheless, as the online landscape continues to evolve, there is a necessity of having robust regulatory mechanisms in place. At the same time, there should be a parallel effort to strengthen public education, whether through on-site initiatives or online platforms, on lawful online conduct. This would help ensure that individuals are fully aware of the legal consequences of what they post and promote greater accountability in digital communication.
Ultimately, the 2025 Amendment should not be viewed solely as a punitive tool but as part of a broader regulatory framework aimed at promoting responsible online conduct. With proper guidance from the regulators and increased public awareness of lawful online behaviour, the amended provision can achieve its intended purpose of fostering a safer digital environment without unduly restricting legitimate speech.
To further mitigate the risks of digital volatility, one possible idea is for the MCMC to consider setting out a regulatory framework requiring global social media platforms such as Meta Platforms to adopt a keyword and sentiment detection system. The system would flag posts containing historically sensitive triggers particularly those relating to race, religion, or grossly offensive language before the content is published.
A key feature of this idea is a double confirmation barrier where instead of automatically blocking content, the system would prompt users to make a conscious choice which is either to cancel the post or to proceed after being warned. This short pause is designed to disrupt impulsive or emotionally driven postings and encourage a moment of reflection. From a legal perspective, choosing to proceed despite the warning could also serve as a clear indicator of intention, helping to distinguish careless remarks from deliberate misconduct. Ultimately, this approach favours informed and intentional digital participation over invisible censorship.
In summary, keeping our digital spaces safe shouldn't come at the cost of clear and fair rules. While the tougher penalties in the 2025 Amendment aim to protect us, they also make it more important than ever for the MCMC to be crystal clear about where the line is drawn. By combining smart technology and better public awareness with fair oversight, we can help Malaysians stay accountable online without silencing the voices and conversations that matter most.
For further information or tailored legal advice regarding compliance with the Malaysian Communications and Multimedia Commission Act (1998) and Communications and Multimedia (Amendment) Act 2025, please contact us for further discussion.
[1] Section 233 of CMA
[2] Section 233(1)(a) of 2025 Amendment
[3] Section 233(2) of 2025 Amendment
Disclaimer: The contents are for general information purposes only and do not constitute legal advice and should not be relied upon as such.
Credits: The featuring photos in this article are taken from internet sources for illustration purpose.
