The founder of Refuge for the Refugees, Heidy Quah Gaik Li filed a civil lawsuit in the Shah Alam High Court on 30 Aug through law firm Amer Bon. The activist seeks a court order to rule the words “offensive” and “annoy” in Section 233 invalidated for being unconstitutional.
Under Section 233(1)(a) of the Communications and Multimedia Act, a person who makes, creates or solicits, and initiates the transmission of any online comment which is “obscene, indecent, false, menacing or offensive” with “intent to annoy, abuse, threaten or harass another person” commits an offence.
This is the same law that was used recently to charge Quah over her 2020 Facebook post, where she had highlighted the alleged poor treatment of detainees at immigration detention centres.
According to Malay Mail, Quah is seeking for the words “annoy” and “offensive” to be removed from Section 233, with the other parts of Section 233 to be retained.
In the court filing, Quah argues that the Section 233 provisions – namely these two words – which make it an offence to knowingly make any online comments which are offensive and with the intent to annoy another person, are restrictions on free speech that extend beyond constitutional limits.
To refresh, under the Federal Constitution, Article 10(1) guarantees all Malaysian citizens the right to freedom of speech and expression. Meanwhile, Article 10(2)(a) allows Parliament to impose restrictions that it considers necessary or expedient in the interest of national security, public order or morality, to protect parliamentary privileges, or to provide against contempt of court, defamation or incitement to any offence.
On the grounds for her lawsuit, Quah argued that the Section 233 parts that criminalise offensive content online are not a “permissible restriction” under Article 10(2)(a).
While Quah’s hearing on her criminal charges is set for a mention at the KL court this morning (6 Sept), her civil lawsuit is scheduled for online case management at the Shah Alam High Court on 14 Sept.