By Ijlal Hannan Hafeedz

The advent of our newfound online freedom through social media, and unfettered use of the internet had brought along a growing trend of abuse. The sharing of obscene, indecent, false, menacing or offensive content is now synonymous with the online world.

This trend can be attributed to a number of reasons, one such reason is the lack of awareness regarding the law governing the use of the internet. Users should be wary of the legal regime that governs our use of social media. The most relevant law when it comes to online content-sharing would be S.233 of the Communications and Multimedia Act ("CMA") 1998.

S.233 of the CMA - where the act of sharing of offensive and menacing content is an offence under, carries a maximum fine of RM50,000 or a jail term not exceeding one year or both. Given that this provision is enforced regularly by the government, what should you know if you're being investigated under S.233 of the CMA?

Don't worry, we've got you covered:

  1. Remain calm and cooperate with the police if they call you - Refusal to cooperate could see a person being charged with obstruction under S. 253 of the CMA, a person found guilty is liable to a fine not exceeding RM20,000, imprisonment for a term not exceeding six months or both.

  2. Can the police search you without a warrant? Technically, a search without a warrant could be done if the officer had reasonable cause to believe that a delay in obtaining a search warrant would adversely affect the investigation or that evidence would be tampered with, removed, damaged or destroyed by virtue of S. 248 of the CMA.

  3. More often than not, being investigated under S.233 of CMA will lead to your phone being confiscated. Power to confiscate or check a person’s phone must be tied to an investigation, and as such the police cannot randomly ask for an individual’s phone and check it. So make sure you know if you're under investigation or if you're just called down to the station to assist with investigation. In any event, hold on to your phone until you're absolutely sure that you have to surrender it.

These are some of the things you should know if ever the misfortune of being investigated under S.233 of the CMA befall you.

However, as with all things, it's better to stay safe by practicing good internet etiquette and maintain civility in your interactions online. Precedent indicates that S.233 of the CMA is applicable with a broad stroke, covering all forms of online and mobile communication, from MMS, emails, and even Facebook comments.

Given the broadness of S.233 of the CMA, acts that may amount to an offence under this provision can be identified by looking to decided cases:-

  1. Distribution of altered official government notice - In Mohd Fahmi Reza bin Mohd Zarin v PP [2019] MLJU 129, a renowned graphic artist (Fahmi Reza) was found guilty under S.233 of the CMA when he uploaded and disseminated an altered version of an official Malaysian Communications and Multimedia Commission (MCMC) notice, which was altered to feature a clown face of the 6th Prime Minister, Najib Razak, as a watermark for the notice.

  2. Posting offensive comments on social media - In Syarul Ema Rena binti Abu Samah lwn Pendakwa Raya[2018] MLJU 1128, the appellant posted a Facebook comment against the 6th Prime Minister, Najib Razak, and all the 222 MPs in the Parliament. The content expressed frustration laced with strong language.[1] The court deemed her guilty and set aside the appeal.

  3. Sharing pornographic material - In 2015, MCMC released a press statement[2] containing 14 cases brought to the court for offences committed under S.211 and S.233 of the CMA, the act of sharing pornographic material via MMS, email, and uploads to the internet were recurrent in the list of 14 cases.

In short, the freedoms afforded to us by law is not absolute, S.233 of the CMA is an extension of that principle - with it, we must balance our approach towards freedom of speech with responsibility and sensibility.

[1] The exact words used in the Facebook comment were: “Kau memang pukimak Najib kalau benar ko sign TPPA Sialan anak haram kalau benar ko sign lah pukimak! Nak lepaskan diri kau! Kau jual negara! Apa babinya kau ni? Kami rakyat Malaysia sumpah 7 keturunan kau! Kenapa tidak dibentangkan di parlimen? 222 MP duduk dalam parlimen termasuk BN & PR BUTOH LAH! Sembang pasal rakyat! Malaysia bakal di jajah kembali Malaysia ada 222 ahli parlimen tak bertanggungjawab!”


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