Is Being Annoying Online Legally Harmful To You? - Nadzarin Kuok Puthucheary & Tan ("NKPT")

Afiq Iskandar Aziz

Legal Associate
Kuala Lumpur

Fahmi Reza is no stranger on social media and in Bukit Aman. He is currently being charged for his satirical artwork, yet again, under section 233(1)(a) of Communications and Multimedia Act (“section 233”) which he famously calls it as ‘Akta Sakit Hati’.

Section 233 has been notorious for criminalizing improper use of network facilities by knowingly transmitting contents which are obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person.

Those convicted under section 233 can be fined up to RM50,000.00 or sentenced to imprisonment not more than one year.

There has been a persistent call for section 233 to be amended – the overbroad definitions in the provision coupled with heavy punishments appears to discourage and curtail Malaysians’ freedom of expression.

Take the word “annoy” in section 233 – there is no legal interpretation of what this word really means. In Malay, it’s translated as ‘sakit hati’. This ambiguity has opened the term to selective interpretations hence selective enforcement of section 233. What one considers as annoying might be tolerable for some and vice versa. Further, it is not unreasonable to question the appropriateness and justice of imposing heavy punishments for an act of annoyance.

It seems to suggest that so long a person is annoyed by a post which he/she feels is addressed to him/her, a complaint can be made and the alleged wrongdoer can be charged for annoying him/her. In Fahmi’s case, it is interesting to note that the complainants have always been a person with a political standing. Go figure.

Having said the above, there are no doubts that lines must be drawn to combat social media abuse and cyberbullying, fulfilling the actual objective and spirit of section 233. However, it must not curtail one’s freedom of expression which is a fundamental right envisaged in the Federal Constitution. Otherwise, a culture of fear could develop where Malaysians are reluctant to share their opinions, make comments and criticize, for fear of being prosecuted under section 233.

An amendment to section 233 that provides greater clarity as to what is being criminalized and which genuinely appreciates the importance of freedom of expression will not only help to maintain vocal independence of all Malaysians but also regulate abuse of freedom of expression.

Well-meaning Malaysians could and should lobby lawmakers into amending section 233. Beware though that if the pressure to amend section 233 builds up, some of the lawmakers are going to find that very annoying!

About the Author

Afiq Iskandar is a Legal Associate of the firm. He graduated from MARA University of Technology, Malaysia. Afiq has multiple interests in life beyond reading law viz. sports, film, music and poetry. He believes that art, in whatever form they may be, is a necessity of life.