Freedom of Speech vs Offensive Communication: Key Takeaways from Court of Appeal’s Decision in Heidy Quah v GOM [2025]

Finance Department
Jan 5
3 min read

Authored by Pravin Rakawan

Introduction

Freedom of speech online has always required balancing open expression and preventing genuinely harmful behaviour. Section 233 of the Communications and Multimedia Act 1998 (“CMA”) outlines the types of online communication that may amount to criminal offences. However, the interpretation and enforcement of Section 233(1)(a) have long been contentious, largely due to its broad and subjective wording.

The recent Court of Appeal (“CA”) decision in Heidy Quah Gaik Li v Kerajaan Malaysia [2025] 6 MLJ 693 has reshaped the understanding of Section 233(1)(a). Plus, there has been amendments to aforesaid section which came into force in 2025. This article summarises the CA’s findings, the 2025 amendments to the CMA, and how both developments work together to provide much-needed clarity on the application and constitutionality of Section 233(1)(a).

Background Facts

In 2020, Heidy Quah highlighted alleged mistreatment of refugees in immigration detention centres in a Facebook post. She was later charged under Section 233(1)(a) of CMA for making an “offensive” statement with intent to “annoy”. However, the Sessions Court granted her a Discharge Not Amounting to an Acquittal (“DNAA”) due to a defective charge.

Nevertheless, Quah brought an action for constitutional challenge, arguing that the words “offensive” and “annoy” in Section 233(1)(a) of CMA were vague and subjective, and infringed Article 10(1) of Federal Constitution (“FC”). She lost at the High Court in 2023 but succeeded on appeal. The CA ultimately held those terms as unconstitutional since they do not fall within the purview of permitted restriction under Article 10(2)(a) of FC.

Amendments to Section 233

Before the Court of Appeal delivered its decision, Parliament had already introduced amendments to Section 233, inter alia, via Communications and Multimedia (Amendment) Act 2025 which came into force on 11th February 2025. These amendments were largely prompted by public criticism that the earlier wording offence particularly “offensive” and “annoy” was overly subjective and could give rise to arbitrary conviction.

The key changes include:

“Offensive” replaced with “grossly offensive”. This narrows the threshold and removes the previous subjectivity that allowed almost any uncomfortable remark to be criminalised.
A new offence category for transmitting prohibited content with the intent to commit offences involving fraud or dishonesty.
Insertion of Explanations 1 to 6, clearly defining what amounts to prohibited content. These explanations cover categories such as indecent, obscene, false, menacing, and grossly offensive material.

Hence, the amended Section 233 is now more specific and targeted, reflecting an intentional legislative shift away from vague moral policing and towards regulating genuinely offensive online communications.

Court of Appeal’s Decision

Despite the amendments, the CA still examined the constitutionality of the previous Section 233(1)(a) because that was the law applicable to Quah’s charge. Its key findings were:

“Offensive” and “intent to annoy” were unconstitutional. These terms were vague, lacked objective standards, and allowed arbitrary enforcement.
They were not permissible restrictions under Article 10(2)(a). Causing “annoyance” or “offence” is not a valid ground for limiting free speech under the Constitution.
Section 233 remains valid for communications that are obscene, false, menacing, or made with intent to harass, abuse, or threaten.
Prospective effect only. The decision applies to current and future cases, not concluded ones.

The Relevance of the Decision

Although the law has changed, the CA’s decision remains important because:

It confirms the unconstitutionality of criminalising mere “offence” or “annoyance” which are incompatible with Article 10 of FC.
It reinforces that restrictions on online speech must be clear, objective, and proportionate.
It supports the direction of the CMA amendments, which already attempted to remove the vagueness that the Court ultimately rules to be unconstitutional.

In effect, the judiciary and legislature are aligned to establish a clear and specific scope under which online communications can amount to a crime, mainly with the intention to cause harm.

Conclusion

The Court of Appeal decision in Heidy Quah’s case, coupled with the 2025 amendments to CMA, marks a significant recalibration of online speech laws in Malaysia. Both affirm that freedom of expression includes the freedom to challenge, criticise, and raise uncomfortable issues as long as the line is not crossed into harassment, threats, or other constitutionally restricted categories.

Bibliography

Communications and Multimedia Act 1998

Communications and Multimedia (Amendment) Act 2025

Federal Constitution

Heidy Quah Gaik Li v Kerajaan Malaysia [2025] 6 MLJ 693, CA