by Chong Mean Shan, Angela Thye Jia Min, Deanna Ternisha, and Derek Kho Ngiat Liang
Part I – Freedom to Speak, Power to Silence
Free speech has always been a powerful tool: to challenge, to protest, to connect. In Malaysia, it is protected under Article 10(1)(a) of the Federal Constitution (“FC”), giving every citizen the right to speak and express themselves. But that freedom comes with conditions. Under Article 10(2) of the FC, Parliament can restrict speech if it is deemed necessary for reasons like national security or public order, so long as the limits are reasonable and proportionate.
What’s changed today is where and how we speak. Social media platforms like X (formerly Twitter), TikTok, Instagram, and Facebook have become the new public square. Anyone with an internet connection can post, comment, and go viral within seconds. A single video or tweet can spark nationwide conversations (or land someone in legal trouble!).
Globally, we have seen how platforms can empower voices that were once unheard. The #MeToo movement showed how stories of abuse, once suppressed or silenced, could finally be shared without needing traditional media or institutional approval. These platforms cut through gatekeeping and give people a space to speak directly to each other. And in Malaysia too, more people have used social media not just to tell their truths, but to organise, call for change, and highlight injustice.
But this digital freedom comes with real-world risks.
In Malaysia, speech online can quickly turn into a legal issue. Laws like the Communications and Multimedia Act 1998 (“CMA”) are often used to investigate or charge individuals for posts that are considered “offensive” or “false”. Section 233 of the CMA has been used repeatedly against ordinary users, activists, and even artists, raising concerns about selective enforcement having a chilling effect on public discourse.
At the same time, it is not just governments controlling speech, tech companies do too. Social media platforms decide what stays up, what gets taken down, and what never gets seen in the first place, thanks to algorithms that are anything but transparent. Content can be shadow banned, flagged, or removed with little explanation. This means that platform policies, not just local laws, are quietly reshaping how and what we are allowed to say.
Malaysia currently lacks a clear, updated legal framework to deal with these challenges. We are still relying on legislation drafted before the explosion of social media, without adequate provisions for platform accountability, algorithmic fairness, or digital user rights.
So, the question is no longer just whether we can speak, but what happens after we do. What are the consequences of online speech in Malaysia today? and who really gets to decide the limits of expression in the age of social media?
Part II – Consequences
Defamation and Civil Liability
To succeed in a defamation claim, the plaintiff must prove that the statement is (i) defamatory; (ii) refers to the plaintiff; and (iii) was published to another person. Although the Defamation Act 1957 (“Defamation Act”) does not define the word “defamation”, its meaning is derived from the English case of Sim v Stretch [1936] 2 All ER 1237 (HOL), wherein Lord Atkin held: “a defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society”. In short, defamation can be defined as the written or oral communication of a false statement about another that unjustly harms their reputation.
Consequently, online speech in Malaysia can be defamatory if they lower the reputation of an individual or entity in the eyes of the public. Publishing content on social media platforms can further increase liability due to widespread dissemination which amplifies reputational harm and potentially increases damages awarded by the court. However, people should be aware of their legal rights, and that not all statements give rise to the tort of defamation.
In Lim Guan Eng v Mahiaddin bin Md. Yassin [2024] MLJU 2904 (HC), former PM Tan Sri Muhyiddin Yassin was ordered by the Kuala Lumpur High Court to pay RM1.35 million in damages to the former Finance Minister Lim Guan Eng for making 3 defamatory statements via Facebook posts. These posts accused Lim Guan Eng of abusing his position and authority by influencing the Inland Revenue Board (LHDN) to revoke the tax-exempt status of Yayasan Albukhary (a charitable foundation) during his time in office. The court held that whilst freedom of speech is an important part of Malaysia’s democracy, it must be exercised responsibly especially by those who hold or have held high public office. The making of unsubstantiated allegations that play on racial and religious sensitivities is something the court will not tolerate.
Criminal Liability – CMA
Under Section 233(1) of the CMA, it is an offence if a person:
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- by means of any network facilities or network service or applications service knowingly (i) makes, creates or solicits; and (ii) initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or grossly offensive in character with intent to annoy, abuse, threaten, harass or commit an offence involving fraud or dishonesty against, any person; or
- initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address.
If a person commits an offence under this section, Section 233(2) of the CMA provides that they shall, on conviction, be liable to a fine not exceeding RM500,000, or to imprisonment of a term not exceeding 2 years, or both, and shall also be liable to a further fine of RM5,000 per day the offence continues after conviction.
In Mohd Fahmi Reza bin Mohd Zarin v PP [2020] 7 MLJ 399, the Fahmi Reza, a Malaysian non-partisan graphic designer, street artist and political activist was charged under Section 233(1)(a) of the CMA for using an application through his Facebook profile page and sending false communications of its nature with intent to injure others, where he has uploaded a caricature image of the former prime minister, Datuk Seri Najib Razak. Fahmi Reza was sentenced by the Sessions Court to a fine of RM30,000 and one month imprisonment.
Dissatisfied with the decision, Fahmi Reza appealed. The High Court agreed with Fahmi Reza’s argument that the communication was a fine and creative work of art created to criticize the government and the authorities for restricting freedom of expression and internet rights. However, the court also held that the same work was produced with the intent to injure others, thereby violating Section 233(1) of the CMA. In the end, the court upheld Fahmi Reza’s conviction but allowed his appeal to reduce his sentence.
Criminal Liability – Sedition Act 1948 (“Sedition Act”)
Section 4(1) of the Sedition Act provides that, any person who:
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- does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act which has or which would, if done, have a seditious tendency;
- utters any seditious words;
- prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or
- imports any seditious publication,
shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding RM5,000 or to imprisonment for a term not exceeding 3 years or to both, and, for a subsequent offence, to imprisonment for a term not exceeding 5 years, and any seditious publication found in the possession of the person or used in evidence at his trial shall be forfeited and may be destroyed or otherwise disposed of as the court directs.
Section 4(2) of the Sedition Act further provides that any person who without lawful excuse has in his possession any seditious publication shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding RM2,000 or to imprisonment for a term not exceeding 18 months, or both, and, for a subsequent offence, to imprisonment for a term not exceeding 3 years, and the publication shall be forfeited and may be destroyed or otherwise disposed of as the court directs.
Section 4 of the Sedition Act was applied in Fahmi Reza’s “Dengki Ke” Sedition Case. On 23 April 2021, the police arrested Fahmi Reza in relation to a jealousy-themed Spotify playlist he had created as a satirical response to a controversial tweet by Malaysia’s queen. He is being investigated under the Sedition Act, which criminalizes any speech with a tendency to “excite disaffection” against or “bring into hatred or contempt” members of Malaysia’s royalty. [1]
However, on 24 August 2021, Fahmi Reza was informed that the sedition investigation against him over the Spotify playlist had been closed and that the case has been classified as requiring “no further action”. He called the development a small victory for freedom of speech and expression through satire. [2]
Criminal Liability – Penal Code
The Malaysian Penal Code contains various relevant provisions[3] that have been used as a basis to justify charges and prosecution of journalists, social media users and bloggers. Section 504 of the Penal Code provides that whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment for a term which may extend to 2 years or with fine or with both.
In Liau Choy Wan v Public Prosecutor [2018] 10 MLJ 374 (HC), Liau Choy Wan (“LCW”) who was a bank officer was charged in the Magistrates Court at Johor Bahru for an offence under Section 504 of the Penal Code for intentionally insulting the customer of the bank to provoke a breach of the peace. She was found guilty, convicted and sentenced to 6 months imprisonment. She contended that the sentence passed was grossly excessive and appealed, arguing that the magistrate had given undue emphasis on deterrence without any consideration of the mitigation aspects. She submitted that, as a bank officer, she was an asset to the society, and that no actual violence had occurred during the incident.
In dismissing LCW appeal, the court held that the correct approach in assessing the punishment is to strike a balance, as far as possible, between the interests of the public and the interests of the accused. In offences under Section 504 of the Penal Code, the key public interest lies in preventing insults that may provoke actions likely to disturb public peace. In this case, LCW’s remarks had the potential to incite racial tension or disrupt harmony, particularly given Malaysia’s multi-racial society. When the competing interests of the public and that of the LCW were weighed on the scales of justice, the public interest outweighed the interests of LCW.
Part Ill – Legal Challenges
Balancing Freedom of Expression with Legal Restrictions
To reiterate, Article 10(1)(a) of the FC guarantees the right to freedom of speech and expression. This is qualified by Article 10(2), which allows Parliament to impose restrictions if it deems it (i) necessary; or (ii) expedient in the interest of public order, security, morality, and other matters.
The inherent ambiguity in this broad discretionary power has resulted in a regulatory environment that leans heavily towards control, often at the expense of individual liberties. The challenge lies in determining when speech crosses the line into actionable territory, particularly when the standards of “public order”, “morality” or “sedition” are applied subjectively.
Outdated or Vaguely Worded Legislation
The Sedition Act and Penal Code contain provisions that predate the digital age and were originally enacted in vastly different socio-political contexts. Their broad wording creates legal uncertainty, for instance, terms like “seditious tendency” or “ill-will and hostility” which are open to broad interpretation, often leading to inconsistent or politically sensitive applications.
The Sedition Act, despite being amended in 2015, has not been enforced in its amended form, further complicating its practical application. This raises the challenge of legal predictability, whereby citizens may not be able to clearly understand the limits of permissible speech.
Expanding Scope of Liability for Online Speech
As demonstrated in Part ll, defamation laws in Malaysia apply equally to online content. Courts have awarded significant damages for social media posts, establishing high financial liability for online expression. It is unclear whether the same is proportional to the right to express opinions or criticism, particularly when such speech concerns public figures or issues of public interest.
Criminalization of Online Content
Section 233 of the CMA criminalizes online communication deemed “indecent,” “false,” or “offensive”. The recent 2025 amendments have further increased penalties, indicating a tougher stance by the government on digital misconduct. However, the subjectivity of what constitutes “annoying”, “menacing” or “offensive” speech remains legally problematic.
Cases such as Fahmi Reza v PP [2020] illustrate the tension between satire and criminality. Although the courts recognized the artistic and political nature of Fahmi Reza’s work, the content was still deemed injurious under Section 233 of the CMA. This case illustrates the thin and inconsistently drawn line between satire and criminality, raising concerns that legitimate criticism and artistic commentary could be penalized simply because they cause discomfort or offence to those in power. Furthermore, the expansion of penalties under the 2025 amendments compounds these concerns, suggesting a regressive shift that prioritizes regulatory control over freedom of expression. The tension between protecting public interest and upholding individual liberties underscores the urgent need for clearer legislative standards and safeguards to prevent misuse of the law against dissent or satire.
Vulnerability to Selective Enforcement
Following from the above, Fahmi Reza’s “Dengki Ke” Spotify playlist prompted investigation under the Sedition Act. Although the same was eventually dropped, Fahmi Reza’s prosecution. itself sparked concern that laws such as the Sedition Act are not always applied consistently or objectively, but may instead be weaponized against individuals who criticize or satirize those in positions of power. Fahmi Reza’s case suggests that the mere act of questioning or mocking the monarchy despite being done through satire and without incitement to violence was sufficient to trigger legal action. This raises troubling questions about the neutrality of enforcement mechanisms and whether the existence of a law, even if not ultimately enforced is enough to silence dissent through fear of reprisal. As such, the case highlights the urgent need for transparent enforcement standards and independent oversight to avoid the misuse of legal tools as instruments of intimidation rather than justice.
Legal Risks in a Multi-Ethnic and Multi-Religious Society
Sections 298 and 505 of the Penal Code criminalise speech that could provoke religious hatred or public mischief. In Liau Choy Wan v Public Prosecutor (HC) LCW was convicted under Section 504 of the Penal Code for intentionally insulting a customer with intent to provoke a breach of peace. The case illustrates how broadly worded provisions like Section 504 can be interpreted expansively, even when no actual violence occurred. This raises concern about how subjective enforcement and vague statutory language may lead to over-criminalization in everyday interpersonal conflicts.
Digital Literacy and Public Awareness
A recurring theme in the legal consequences of digital speech is the lack of public awareness regarding the law. Many users may not be aware that casual online remarks such as a review, meme or political comment can lead to criminal prosecution or civil lawsuits. For example, in Pendakwa Raya v Muhammad Zaki bin Omar [2025] MLJU 374, Muhammad Zaki bin Omar (“Muhammad Zaki”) was charged under section 233(1)(a) of the CMA for posting a Facebook comment deemed offensive and intended to annoy. The Sessions Court found that while the prosecution successfully linked the Facebook account to Muhammad Zaki and proved he made the post, it failed to establish that the post was objectively offensive or made with intent to annoy. The judge held that the post expressed a personal opinion on the COVID-19 vaccine and government efforts, views protected under Article 10(1)(a) of the FC and did not meet the legal threshold of offensiveness. Consequently, the court ruled that no prima facie case was established and acquitted and discharged Muhammad Zaki.
This case has wide-reaching implications, especially in the context of digital literacy and youth awareness. It highlights the often-overlooked reality that social media is a public space governed by laws, not a private diary or unfiltered soapbox. What may seem like a harmless outburst or joke online can carry real-world consequences including criminal prosecution. More importantly, it raises urgent questions about the level of legal awareness. Many may not understand the legal thresholds for “offensive” or “menacing” speech, nor realise that online expression no matter how spontaneous or emotional is held to the same standards as speech made offline.
The challenge here is both legal and educational: how can the law be enforced fairly if the average citizen does not fully understand what constitutes illegal speech? This calls for greater public education on legal risks in digital expression.
Part IV – Attempts At Legislation and Potential Reform
The Anti-Fake News Act 2018
Malaysia’s response to the above was the (now repealed) Anti-Fake News Act 2018 (‘AFNA’). Gazetted on 11 April 2018, the perhaps ill-advised and/or short-lived act sought to ‘deal with fake news and related matters’ by, amongst others, making any person who makes and/or spreads fake news criminally liable to a fine not exceeding RM500,000 and/or imprisonment not exceeding 6 years. [4]
Shortly after, a 46-year-old Yemeni named Salah Salem Saleh Sulaiman was the first person to be convicted under the AFNA. In a YouTube video Sulaiman posted, he accused PDRM of taking 50 minutes to respond to distress calls after the shooting of the Palestinian lecturer/Hamas member Fadi al-Batsch in late April that year. Police records later showed that they responded within 8 minutes and in the charge, stated that Sulaiman ‘with ill intent, published fake news through a video on YouTube’. The Sessions Court judge Zaman Mohd Noor convicted Sulaiman under Section 4(1) of the AFNA. Sulaiman was fined RM10,000, but opted to spend a month in jail instead as he was unable to pay.
The Repeal and the Ordinance
In any event, the AFNA was repealed in October of 2019 – only to return in the form of the Emergency (Essential Powers) (No. 2) Ordinance 2021 (‘the Ordinance’). Coming into force on 12 March 2021 (during the COVID-19 Pandemic), the Ordinance’s main intent and/or function was to criminalize the dissemination of fake news related to COVID-19. The Communications and Multimedia Minister Datuk Saifuddin Abdullah at the time was quoted saying that the Ordinance was ‘meant to uphold the rule of law’ and that ‘we will not misuse the Ordinance and due to this we are very careful’. [5]
As it turned out however, the Ordinance was even shorter lived than its predecessor as Parliament revoked the Ordinance in December of 2021.
Moving Forward – the Online Safety Bill 2024
The Online Safety Bill was passed on 16 December 2024, and is the latest legislation to regulated content posted and/or consumed online. Amongst some of its features are, amongst others:
- Establishing an Online Safety Appeal Tribunal
- Imposing duties on online service providers to mitigate the risk of exposure to harmful content;
- Providing procedure for reporting of harmful content;
- Empowering the MCMC to direct, give notice; impose financial penalties and issue guidelines regarding online content to online service providers; and
Empowering the MCMC to direct any person to produce evidence pertaining to the MCMC’s functions and powers.
Notwithstanding, ARTICLE 19 has issued its key criticisms of the Online Safety Bill. This includes concerns about the lack of an independent oversight body over MCMC, the overreach of the online safety appeal tribunal, the broad/vague definition of ‘harmful content’, and the liability of online service providers.
Recommendations – the ICCPR’s 3 Standards
If at some point Malaysia ratifies the ICCPR, it may consider applying the three necessary standards set by the ICCPR in the drafting of future legislation pertaining to free speech. These three standards and/or tests are the (i) Legality Test; the (ii) Necessity Test; and (iii) the Legitimacy Test (collectively the ‘ICCPR’s 3 Standards’). As a case study, Writer Bevis Hsin applies the ICCPR’s 3 Standards to AFNA and found that the act fails on all three counts.
First, the legality test must be ‘provided by law’, adopted by ‘regular legal processes’, written with ‘sufficient precision’, and involve the oversight of independent judicial authorities. AFNA unambiguously fails on the grounds that, amongst others, ‘fake news’ is vaguely defined – the wording is sufficiently wide for an action to be brought challenging ‘correct’ or ‘incorrect’ views on, for example, religion, economy, history, politics and science.
Secondly, the necessity test provides that in passing legislation that restricts speech, the government must ‘demonstrate the precise nature of the threat that particular speech poses to legitimate interests’. The legislation must also be ‘necessary to promote legitimate purposes’ and must be the ‘least intrusive alternative’. Critics of AFNA alleged that it was passed as a means to suppress reporting on the 1Malaysia Development Berhad (1MDB) scandal and not to ‘prevent false information against the government’ and protect the integrity of the upcoming election at the material time. Arguably, the AFNA was also unnecessary, as the Sedition Act, CMA and Penal Code already provided for similar powers.
Thirdly, the legitimacy test states that any speech restrictions must protect only the interests as provided in Article 19(3) of the ICCPR, namely the rights or reputations of others, national security, public order, public health and/or morals. Whilst Section 8(3) of the AFNA and/or the previous government’s sentiment frames fake news as a threat to ‘national security’ or ‘public order’, Bevis Hsin refers again to the 1MDB scandal and associated criticisms of the intention of AFNA at the time to question.
In short, the ICCPR’s 3 Standards reflect a set of principles that ought to guide a government when legislating on matters pertaining to speech and/or the restriction of the same. These may be considered in the future, should the need arise.
Conclusion
Freedom of speech in Malaysia, though codified, has been repeatedly tested over the years. With the online world having now firmly carved a niche in the lives of its citizens, the legal landscape in Malaysia will only grow increasingly complicated moving forward. It would serve Malaysia well to take seriously the criticisms levied at its attempts to legislate online speech, and to avoid making the same mistakes it ought to already have learned from.
[1] “Malaysia: Free Speech Under Increasingly Threat” dated 19 May 2021, https://www.hrw.org/news/2021/05/19/malaysia-free-speech-under-increasing-threat.
[2] “Fahmi Reza says police case over Spotify playlist classed as NFA” dated 24 August 2021, https://www.malaymail.com/news/malaysia/2021/08/24/fahmi-reza-says-police-case-over-spotify-playlist-classed-as-nfa/2000132.
[3] S298, S499, S504, S505
[4] Section 4(1) AFNA
[5] ‘Minister Says Anti-Fake News Emergency Ordinance To Uphold Rule Of Law’ by the Ministry of Communications, 3 June 2021
