Heidy Quah Gaik Li v Kerajaan Malaysia PIHAK TERKILAN Clooney Foundation For Justice

Case Significance

Applies the proportionality doctrine and the law-order/public-order distinction to hold, at the appellate level, that the words "offensive" and "annoy" in section 233 of the Communications and Multimedia Act 1998 imposed a disproportionate restriction on freedom of expression, a question the Federal Court later revisited.

This Court of Appeal decision concerns the constitutionality of the words "offensive" and "annoy" in section 233 of the Communications and Multimedia Act 1998, and is the appellate ruling later considered by the Federal Court. The appellant had published a social-media post about conditions for detainees at an immigration detention centre during the Covid-19 pandemic, and was later charged under section 233(1)(a) for making a transmission that was offensive with intent to annoy. After the Sessions Court granted a discharge not amounting to an acquittal on a preliminary objection, she pursued an originating summons challenging the constitutionality of the impugned words. The Court considered whether the restriction created by the words pursued a legitimate aim under Article 10(2)(a) of the Federal Constitution read with Article 8, whether it was a permissible restriction on grounds of public order, and whether it was proportionate to that aim. Applying the proportionality doctrine, and drawing the distinction between "law and order" and "public order", the Court examined whether criminalising offensive communications made with intent to annoy amounted to a prohibition of protected expression rather than a permissible restriction of it, noting the absence of any statutory defence, including a defence of truth. It affirmed that the courts are empowered to strike down legislation that is inconsistent with the Constitution. The Court held that the impugned words imposed a disproportionate restriction on the freedom of speech and expression guaranteed by Article 10(1)(a) and could not be saved as a permissible restriction, and allowed the appeal. The judgment is significant as the appellate ruling on section 233 that the Federal Court subsequently revisited, and for its application of proportionality and the law-order/public-order distinction to online speech. The decision is an important appellate statement on the constitutional limits of criminalising online expression, and on the courts' power to strike down a provision that operates as a prohibition of protected speech rather than a proportionate restriction of it, subject to the Federal Court's later revisiting of the question.