Section 233(1)(a) of the Communications and Multimedia Act (CMA) 1998 criminalises “the improper use of network facilities or services”. Basically, you might get yourself into trouble for posting anything (ie: remarks, comments, pictures, videos, signs) which are false, obscene, indecent, offensive in the Internet with the intent to annoy, harass, abuse or threaten any person.” The person could be anyone, from lay people like you and me, to political figures and members of the royal families. S.233(1)(a) CMA covers one-to-one communication, group chat, public posting and any other interactions using the social media (ie: Facebook, Twitter, Blog and even Whatapps) – there is no limitations on how a person could be charged.
Section 233 CMA: Improper use of network facilities or network service, etc.
(1) A person who—
- 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 offensive in character with intent to annoy, abuse, threaten or harass another person;
(3) A person who commits an offence under this section shall, on conviction, be liable to a fine not exceeding RM50,000 or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of RM1,000 for every day during which the offence is continued after conviction.
- In 2016, a 76-year-old man Pa Ya, was arrested by the police for allegedly posting a picture insulting the Prime Minister in a Whatsapp group chat. The man, was arrested in Petaling Jaya, and taken into custody for investigation in Johor.
- In 2015, “Letak Jawatan” Facebook page administrator Joe Haidy Sulaiman was investigated for allegedly defaming the Prime Minister.
- In 2015, Sarawak Report was charged and investigated, and access to its website was blocked for publishing unverified information relating to the Prime Minister and 1MDB;
Under Section 233(1)(b) CMA, the Prosecutor are not required to establish the knowledge of the accused being annoyed or abused. This would mean the targeted person does not actually need to feel annoyed, harrassed or insulted. All the Prosecutor has to do is to establish the intention of the accused to annoy, abuse, threaten or harass the other person. In PP v Rutinin Suhaimin (2013), the High Court judge has confirmed that intention to annoy, abuse, or harass can be inferred, and it is unnecessary to call the victim of the annoying remarks to attend court as witness.
In short: if you have said/post something in the social media to annoy or insult a person (whether you mean it or not), and even if the person had not actually been insulted (because he/she had not view those words/pictures), you might still get yourself in trouble under s.233 CMA.
While the aim of these sections is to promote responsibility and accountability for Internet users, the problem with s.233 CMA lies in its extremely subjective interpretation. There is no definition or guidance whatsoever explaining what constitutes “indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass.” As a result, this gives the Police an extremely wide discretion to charge and investigate people for exchanging opinions, and this arguably infringes our right to freedom of speech and right to privacy. The Malaysian Bar had on many occasions openly criticised the misuse of s.233 CMA and called for amendments. It is hope that amendments to the Act will happen soon, because the ability to express our opinion freely is essential to bring about meaningful progress to the society.