Kerajaan Malaysia v Heidy Quah Gaik Li PENCELAH Suruhanjaya Komunikasi Dan Multimedia Malaysia (MCMC), Cyberjaya AMICUS CURIE 1. ) Suara Rakyat Malaysia (SUARAM) 2. ) Clooney Foundation For Justice (CFJ) 3. ) The International Bar Association's Human Rights Institute (IBAHRI) 4. ) BADAN PEGUAM MALAYSIA

Case Significance

Clarifies that Article 10(1)(a) freedom of expression is subject to inherent limits and permissible restrictions, and upholds section 233(1)(a) of the Communications and Multimedia Act 1998 by reading it down rather than striking it out under Article 4(1).

This Federal Court decision addresses the constitutionality of section 233(1)(a) of the Communications and Multimedia Act 1998, which criminalises the making of communications that are "offensive" and made with intent to "annoy" another person. The proceedings began as a constitutional challenge by the respondent, an individual who had faced prosecution over a social-media post, and reached the Federal Court on the Government's appeal. The Court addressed a set of related questions: how Article 4(1) is to be applied together with Article 4(2) of the Federal Constitution when a statutory provision is said to infringe a fundamental right; how the guarantee of freedom of speech and expression in Article 10(1)(a) is to be construed alongside the permissible restrictions in Article 10(2)(a); and what the intent and object of the Communications and Multimedia Act are in regulating communications in the digital age. Applying the presumption of constitutionality and the principle of reading down to avoid vagueness, the Court held that the right in Article 10(1)(a) does not extend to communications intended to harm, injure, threaten or harass, and that freedom of speech carries inherent limits. On that basis it reinstated the impugned words in section 233(1)(a), declining to strike them out under Article 4(1). At the same time, the Court affirmed the Court of Appeal's conclusion that there was no basis to prosecute the respondent on the ground that her post was offensive and communicated with intent to annoy, and it observed that guidelines on prosecution were desirable. Because the appeal concerned a matter of public interest, no order was made as to costs. The judgment is significant for clarifying the reach of Article 10(1)(a), the operation of the reading-down technique under Article 4, and the limits of section 233 as an instrument of digital regulation. The decision also shows the Federal Court preferring to preserve a statutory provision through interpretation rather than to invalidate it, while confining its practical reach so that protected expression is not caught.