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Episode 11: The Line Between Freedom of Expression and Cyberbullying

Updated: Oct 12, 2022

As social media has become increasingly important in our daily life, it is vital to see what is the extent of our freedom of speech on social media. We hope that this episode of law series could enlighten you on this aspect of law!

1.0 Introduction

According to the Malaysian Communication and Multimedia Commission (2018), nearly 25 million Malaysians, which makes up 82 percent of Malaysia's population, were online at the end of 2018. For the most part, the Malaysian government has taken efforts to make this country a regional and global leader in information technology (IT). Many strategic initiatives have been adopted to boost the internet’s expansion since its access was first opened to the public in 1995.

Malaysia has been able to catch up with the rest of the world with the increasing use of the Internet and social media. Our nation, nevertheless, must ensure that its multiracial community exists in peace and prosperity as a democratic society. Even though Article 10(1)(a) of the Federal Constitution guarantees the right to free speech and expression, such right has often been misused, which can be evidenced by the increasingly prevalent issue of hate speech arising on social media platforms such as Facebook, Twitter, and Instagram. Notably, hate speech is often centred around the issues of ideology, race, and politics.

For most people, exercising complete freedom of expression in the public is incomprehensible. As a consequence, the Internet is the perfect medium for them to freely express their thoughts and viewpoints. Hence, there are pockets of social discord among residents. Despite the fact that the authorities have condemned this unhealthy practice, people commonly believe they have the freedom to write anything they like.

However, some laws limit their expression and protect social media users from being victims of hate speech. Hence, in this article, we aim to shed light on the legal position of freedom of speech on social media in our country, and the attitude and involvement of Malaysian social media users towards freedom of speech and hatred speech.

2.0 Legal Position

Despite the freedom of speech granted under Article 10(1)(a), such right is still subject to restrictions enshrined under Article 10(2)(a). It stipulates that freedom of speech and expression are subject to certain restrictions ‘as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence.’

2.1 Gatekeeper of freedom of speech on the Internet

The Malaysian Communications and Multimedia Commission (MCMC) has the mission to provide transparent regulatory processes to facilitate fair competition and efficiency in the multimedia industry. Its process for appointing members of the MCMC advisory board is more transparent as it involves consultations with different stakeholders. Nevertheless, the commission has a poor record in upholding Internet freedom (Freedom House, 2018).

In July 2015, whistle-blower site Sarawak Report was blocked over the articles on the misallocation of funds from 1Malaysia Development Berhad (1MDB). In January 2016, Asia Sentinel which is based in Hong Kong was blocked after the publication of an article about the former Prime Minister Najib Razak with regards to 1MDB. Besides, two local news portals, Malaysia Chronicle and The Malaysian Insider were blocked in 2015 and 2016 respectively for criticising Najib Razak over the 1MDB scandal. The bans were only lifted in May 2018 after the change in the federal government.

In addition, MCMC attempts to involve the Malaysian public to monitor and censor online speech (Article 19, 2019), which represents a threat to freedom of expression by allowing the public to shoot itself in the foot. The purpose of the monitoring and censorship was to ‘avoid controversial or offensive online speech’ with regards to 3R content, namely race, religion, and royalty (MCMC, 2019). However, Malaysia’s legal framework consists of vaguely worded legislation that allow the public authorities to interpret the boundary of the freedom of speech on the Internet, which includes the Communications and Multimedia Act 1998 (‘the CMA 1998’), Sedition Act 1948, Penal Code, and the recent Emergency (Essential Powers) (No. 2) Ordinance 2021.

2.2 Sedition Act 1948

Under the Sedition Act, the meaning of ‘seditious tendency' has been extended beyond its original definition. For instance, the word ‘seditious' is defined widely as any act, speech or words, publication, or thing ‘having a seditious tendency’. Although this Act was intended to deal with the traditional concept of freedom of speech, its applicability could be extended to cover ‘electronic speech’ (Murni & Shahir, 2017).

In determining seditious tendency, the intention of the party is irrelevant by virtue of Section 3(3) of the Act which states that ‘for the purpose of proving the commission of any offence against this act the intention of the person charged at the time he… uttered any seditious words... shall be deemed to be irrelevant if in fact… the words… had a seditious tendency’. In Mat Shuhaimi Shafiei v Kerajaan Malaysia, the appellant (Mat Shuhaimi) was allegedly posting seditious material on his blog. In delivering the judgment, the impugned section was declared unconstitutional on the ground that the section imposed a disproportionate restriction or measure which did not meet the permissible objectives spelt out in Article 10(2)(a) of the Federal Constitution. However, the decision was later reversed by the Federal Court. All this while, our courts have consistently regarded sedition as an absolute liability offence, where the prosecution needs not to prove the intention of the accused. In PP v Mark Koding, the court held that even an intention with good faith will not provide a defence where ‘it is immaterial whether the accused’s intention or motive was honourable or evil when making the speech’.

Section 4(1) on the other hand was challenged in PP v Azmi Sharom on the ground of contravening Article 10(2) of the Federal Constitution. The section is reproduced as follows:

‘(1) Any person who

(a) 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;

(b) utters any seditious words;

(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or

(d) imports any seditious publication,

shall be guilty of an offence…’

The court ruled that the restriction on freedom of speech is not without limits but it must pass the proportionality test in order to be valid, as laid down inPP v Pung Chen Choon. The contention by the counsel of Azmi Sharom was rejected as the restriction imposed by the section is not too remote and it is not a total prohibition as it is subject to a few exceptions as provided in Section 3(2).

Since the Perikatan Nasional coalition came to power in March 2020, the Sedition Act has been used to restrict freedom of speech on the Internet. The number of cases documented by SUARAM that were either investigated, arrested, charged, or found guilty under the Sedition Act has increased drastically to 24 cases, as compared to 10 in 2018 and 12 in 2019 (SUARAM, 2021). Only three days after Muhyiddin Yassin was sworn in as Prime Minister, social activist Fadiah Nadwa Fikri was summoned by the police for uploading a Twitter post calling for people to attend a rally against the ‘backdoor’ dealings (SUARAM, 2020). Furthermore, by exposing the abuses of undocumented migrants during the COVID-19 pandemic, Al Jazeera’s staffs were summoned and investigated by Bukit Aman on the documentary. The reporters Drew Ambrose and Jenni Henderson, and the whistleblower Mohamad Rayhan Kabir were forced to leave the country (Article 19, 2020).

2.3 Communications and Multimedia Act 1998

The existing laws governing the behaviour of social media users include the CMA 1998. This Act, which is supervised by the Malaysian Communications and Multimedia Commission, serves as a legal mandate to govern online freedom of speech. According to its Preamble, this Act aims to regulate the converging communications and multimedia industries.

According to Section 233(a) of the CMA 1998, it is an offence to use a network facility to knowingly make, create, solicit or initiate communication that is obscene, indecent, false, menacing, or offensive with the intent to annoy, abuse, threaten, or harass another person, and carries a penalty of up to RM50,000 or one year’s imprisonment.

This section can also be used to combat what the government deems as false information. For instance, this can be seen in April 2020, which was a month after the Movement Control Order 1.0 was introduced in Malaysia. According to the Senior Minister (Security Cluster) Datuk Seri Ismail Sabri Yaakob, a staggering number of 238 investigation papers were opened on COVID-19-related fake news cases in accordance with Section 233 of the CMA 1998 (Nuradzimmah Daim, 2020).

Recently in April 2021, a graphic designer Fahmi Reza was investigated under Section 233 of the CMA 1998 for intentional insult in a social media post involving the Raja Permaisuri Agong Tunku Hajah Azizah Aminah Maimunah Iskandariah. He was claimed to have published a post entitled ‘This is dengki ke? on his Facebook page, allegedly insulting Tunku Azizah (Bernama, 2021).

A week after that, he was once again called up by the police in connection with a satire depicting Health Minister Datuk Seri Dr Adham Baba. Fahmi was being investigated under Section 233 of the CMA 1998 for two posts he made on Twitter. The first post was on a modification of the Universiti Kebangsaan Malaysia logo, while the other was an artist's impression of Health Minister Datuk Seri Dr Adham Baba (FMT Reporters, 2021). This incident proves that freedom of speech in Malaysia is not absolute, as it has to adhere to the CMA 1998 as well.

2.4 Penal Code (Act 574)

Freedom of speech on social media is also regulated by the Penal Code. Section 504 stipulates that it is an offence to intentionally insult, and thereby give provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, which shall be punished with imprisonment for a term which may extend to two years or with fine or with both. In the case of Liau Choy Wan v Public Prosecutor, the appellant was charged in the Magistrates Court at Johor Bahru for an offence under section 504 of the Penal Code. In dismissing the appellant’s 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 June 2020, a blogger Dian Abdullah was charged with two instruments for ‘making statements with the intent to cause fear to the public or to any sections of the public by commencing delivering statements that were abhorrent in nature, with intent to offend other people’s feelings’ as enshrined under Section 505(b) of the Penal Code. In both posts, she censured the King for his role in appointing a new Prime Minister and criticized the new Prime Minister for allegedly mishandling the COVID-19 pandemic and causing further suffering (American Bar Association, 2021).

Furthermore, Fahmi Reza, aside from being investigated under the CMA 1998 as previously mentioned, was also investigated under Section 504 of the Penal Code for intentional insult made on his social media platform, which may affect the public interest (Farik Zolkepli, 2021).

Based on the above cases, it can be inferred that public interest is a significant factor in imposing the charge of Section 504 of the Penal Code. Thus, freedom of speech on social media is not absolute as it is governed by these existing laws.

2.5 Emergency (Essential Powers) (No. 2) Ordinance 2021

On 12 March 2021, the Emergency (Essential Powers) (No. 2) Ordinance (the ‘Ordinance’) came into effect with the aim to curb the spread of fake news with regards to COVID-19 as well as the proclamation of emergency. The term ‘fake news’ is defined under Section 2 as ‘any news, information, data and reports, which is or are wholly or partly false relating to COVID-19 or the proclamation of emergency, whether in form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas’.

The Ordinance grants authorities access to computerised data as well as the preservation of website traffic data. When the public authorities request access to stored traffic data, the provider has to disclose the data. Any investigation for seizable offences of the Ordinance also does not require a warrant.

The imposition of heavy penalties such as a fine of up to RM100,000 or imprisonment up to three years, or both, may create a chilling effect on the freedom of expression (SUHAKAM, 2021). Although Communications and Multimedia Minister Saifuddin Abdullah reiterated that the Ordinance is not targeted at politicians, de facto Law Minister Takiyuddin Hassan said that those who claim the government sought an emergency declaration because it lost its majority in the Dewan Rakyat violates the fake news Ordinance.

3.0 The Fine Line between Cyberbullying and Freedom of Speech

3.1 Cyberbullying

The Internet and social media have become the centre stage for the application of freedom of speech and expression. For instance, there is a staggering number of 2.6 billion monthly active users on Facebook alone, accounting for nearly a third of the global population (Laub, 2019). Despite its manifold advantages, the dark side of social media, manifesting in the way of cyberbullying, fake news, hate speech, and false propaganda has posed enormous risks to individuals, communities, and even society as a whole. It is a saddening realization that the very same invention which enhances the rights to freedom of speech and expression are now eroding the liberty and welfare of its users. As such, it is rather pertinent for us to fully comprehend the multidimensionality of the dark side of social media before hopping into the dilemma on whether it is appropriate to restrict free speech online.

To begin, we will explore a few of the key social media functionalities which are (i) conversations; (ii) sharing; and (iii) group and how these functionalities impact freedom of speech in the online world. The first is conversation. Many social media platforms provide the features to interact such as ‘Like’, ‘Reply’, ‘Comment’, and ‘Message’. The dark side of the conversation functionality usually arises when normal rules of social engagement are lost in the process of deindividualization (Baccarella et al., 2018). Seeing that there is a group of people that similarly resonates with his or her conviction, an individual may feel lesser self-responsibility and self-awareness in expressing due to the false sense of belonging. Hence, this will lead to excessive aggression on social media which may eventually unfold into cyberbullying.

The second is sharing. The convenience of social media to share any content instantaneously exacerbates the transmission of misinformation. A study by MIT Scholars on Twitter discovered the shocking truth that fake news travels six times faster than the truth (Dizikes, 2018). Apart from the deliberate sharing of false news to sow discord, most users share false news unwittingly due to the strong emotional response which is specifically generated to attract publicity. In short, the powerful sharing feature of social media may be detrimental to both the content sharer and the content reader.

The third is with regard to groups. Many social media offer the function of creating or joining a group or a community with shared practice or interest. One common negativity of such group building is known as ‘ingroup-outgroup bias’ (Baccarella et al., 2018). This means that people define themselves as belonging to a group in which they reinforce their own beliefs but belittle those who do not fit into their group. Such individuals will not only exclude differences of opinion, but they will also gradually lose their ability to empathise. Hence, their offensive and outrageous comments in retaliation for a different opinion often result in the polarization of the society.

As of 2018, a survey showed that 23% of Malaysian parents said their children had encountered cyberbullies (Yap, 2020). In fact, a study by tech review site Comparitech found that Malaysia placed sixth among the 28 countries surveyed to measure cyberbullying, and ranked second in Asia in 2018 (Nazari, 2020). Most of the victims experienced such harassment through malicious comments made personally against their appearances. What made the issue more worrying is that most of the cases were unreported, which means that the victim, where most of them were under 18 years of age, had to endure such harassment (Nortajuddin, 2020). On 14 May 2019, a 16-year-old girl in Sarawak jumped to her death from the third floor of a shop lot building in Kuching as her Instagram followers encouraged her to do so in her Instagram poll on deciding whether she should continue to live or to kill herself. Many condemned the 69% of the respondent that supported her to commit suicide as murderers but sadly, no action can be taken against anyone as it was done online, without any proof of identity or clear intention to kill the victim (Tang, 2019).

3.2 The Solution Proposed

The case of this poor 16-year-old girl served as a very good alarm against cyberbullying. However, the reality is social media users are placed under the microscope of ‘netizens’ in terms of their behaviours, appearances, and daily lives where they are prone to any nasty comments made towards them (Alisha, 2020). Throughout these years, debates arise on whether the government should impose a cyberbullying law to regulate social media users’ behaviours online. Before proceeding to further discussion on the relevance of anti-cyberbullying laws, it is vital to scrutinize the existing laws. Alongside the Penal Code, Malaysia highly relied on section 233(1) of the CMA 1998 to prosecute the offenders. As Tan Chuan Ou, the Deputy Secretary-General in the Multimedia and Communication Ministry stated that the Penal Code and CMA 1998 were enough to regulate the behaviours of social media users, MP Kasthuri Patho rejected such claim by stating that there is a lacuna in the laws of cyberbullying, where it is not specific enough to aim at cyberbullies and the punishments on such offence. According to MP Kasthuri, MCMC, The Attorney General’s Chambers (AGC) and the Police Diraja Malaysia (PDRM) were not keen enough to investigate the reported cases of cyberbullying with a lack of specific laws being one of the driving factors in such inefficiencies (Patho, 2020).

Nonetheless, the Minister of Communications and Multimedia Malaysia, Datuk Saifuddin Abdullah is leading the department to prepare a cabinet paper on anti-cyberbullying laws. This effort was made pursuant to the survey made by the Multimedia University (MMU) where 74% of legal practitioners believed there was a need to establish a special court related to cyberbullying. Besides, 71.6% of legal practitioners and 89.3% of the public wanted a cyberbullying act to be introduced (Nazari, 2020). According to the Minister, the Malaysian version of anti-cyberbullying law will be critically based on consultation from the AGC, MCMC, CyberSecurity Malaysia, and the Malaysian Bar (Bernama, 2021). Suggestions were also made to refer to the Singaporean Protection from Harassment Act 2015 which criminalises harassment, stalking, and other anti-social behaviour (Nazari, 2020). The 2015 Act was designed specifically to make cyberbullying and online harassment criminal offences. This may seem very effective in addressing the lacunas in our Malaysian laws, where besides cyberbullying, offences such as stalking will be effectively protected.

3.3 Restricting Cyberbullying And Its Effect Towards Freedom Of Speech

Be that as it may, concerns may arise on the issue of restrictions of freedom of speech after Malaysia fell 18 spots to number 119 in the 2021 World Press Freedom Index (Murugiah, 2021). Hence, the question at hand now is whether the laws on restricting freedom of speech were enough to apply in the cases of cyberbullying? By looking at the current situation in Malaysia, to be frank, such effectiveness is up to the discretion of the policymakers. However, it is for sure that by introducing another law regulating people’s freedom of speech, the government may receive backlashes from the public. Recently, Malaysians were shocked by the recent conviction in the case of Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor where Malaysiakini was held liable for the irresponsible comments from their readers. This left us to ponder on what are the borderlines of our rights to free speech online?

Taking the contradicting example between Fahmi Reza and Ain Husniza, some may look at the issues and ask why Fahmi Reza was immediately arrested whereas the ‘netizens’ that made rape threats and hate comments online towards Ain Husniza were not even taken seriously by the police (Zainal, 2021), given the alleged offences done in both examples were punishable by the Malaysian laws? This reflects the current persisting problem in Malaysia since its independence. No matter how many laws are enacted to combat certain offences, it will always exist as a mere ‘decoration’ if not utilised. Furthermore, by looking at the newly enacted anti-fake news law enacted under the emergency state, it can be said that currently, it is not a suitable timing for the implementation of the new law on restricting free speech (Article 19, 2021). Hence, it is submitted that the utmost important thing which needs to be done by the policymakers is to ensure there will be no abuse of power in enforcing the laws. A law can be effective or ineffective in terms of its implementation. In order to determine whether the law is successful or not, the principle of the rule of law must be upheld first, with clear and fair regulations for the public to comply with.

4.0 Conclusion

Freedom of speech is not just a fundamental right, it is also a powerful tool people use to express their own thoughts and opinions on a certain topic. Nonetheless, as much as the Constitution guarantees our rights to free speech, it should be noted that such rights are not absolute. We should also not take these rights for granted, especially when using social media. Social media is indeed like a double-edged sword. It has revealed its good where it functions as a large scale of ‘word of mouth’ communication on public issues, bridging people together to socialize and discuss a topic anytime, anywhere. However, social media becomes unpopular when it turns into a platform for spreading fake news, hate comments, racial propaganda and various information capable of disrupting the peace and order of the nation.

In terms of cyberbullying, comments and constructive criticisms are fine as they can enable a person to reflect on his or her faults as well as shortcomings, and subsequently make improvements. However, a fine line must be drawn on making hate comments capable of making someone depressed and eventually kill themselves. Even if we have a specific law to combat cyberbullying, unpleasant things are inevitable on the Internet because anyone can do anything as they wish by hiding behind a computer screen. What needs to be done is to build a healthy online community within the country by learning the correct way to use the Internet. Parents, friends and families can also show support to the victims of cyberbullying, helping them to build self-confidence towards the ruthless online community the world serves us.

On the other hand, the enactment of laws to oppress political dissent on social media is a naked violation of freedom of speech, which is liberty fundamental to democracy. The ability to express our opinion and speak freely is essential to supervise the governance of the authorities and subsequently bring about change in society. The law should be used for public benefit such as to preserve the stability of the society from the spread of inciting fake news, but not to consolidate one’s governing power. From the aforementioned issues such as the issue of Fahmi Reza, Ain Husniza, and the Minister’s intention to refer to any news unfavourable towards the government as fake news under the Ordinance, it is time for the policymakers to ponder upon the practicability and effectiveness of existing laws to regulate the public’s voices online. The points discussed must be considered before proceeding to enact more laws that restrict one’s freedom of speech such as anti-cyberbullying law given the inability of the authorities to execute the existing laws according to the rule of law.

From this experience, alongside the news media, social media serves as surveillance cameras in the Malaysian democracy under this slowly modernised area. It comes with everyone’s responsibility to ensure the voices of people will not be restricted into the four corners as those in the power of the government offices wish; as well as the responsibility to ensure the good use of social media with professionalism, morality, and ethics. Everyone should play a role as active citizens to persevere against the erosion of democracy and other fundamental rights. The people should be brave enough to stand up and express strong and clear opposition against the intimidation of the evil power. As our Constitution was framed in a way that every right should come with reasonable restrictions, it is submitted that the same should apply to social media. Till then, this is where everyone, as a social media user, takes the role in democracy by supervising things that occur every day, be it political, social, or economic in a right way such that the benefits of the people will be protected by all means.



Federal Constitution

Communications and Multimedia Act 1998

Penal Code

The Emergency (Essential Powers 2.0) Ordinance 2021

Sedition Act 1948


Kerajaan Malaysia v Mat Shuhaimi Shafiei [2018] 2 MLJ 133

Liau Choy Wan v. Public Prosecutor [2017] 10 CLJ 649

Mat Shuhaimi Shafiei v Kerajaan Malaysia [2017] 1 MLJ 436

PP v Azmi Sharom [2015] 6 MLJ 751

PP v Mark Koding [1983] 1 MLJ 111

PP v Pung Chen Choon [1994] 1 MLJ 566

Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652

Journal Article

Baccarella, C. V., Wagner, T. F., Kietzmann, J. H., & McCarthy, I. P. (2018). Social Media? It’s serious! Understanding the dark side of social media. European Management Journal, 36(4), 431–438. Retrieved from


Malaysian Communication and Multimedia Commission. (2018). MCMC Annual Report 2018. Retrieved from

SUARAM. (2021). SUARAM Annual Report 2020.

Online Newspaper Article

Alisha, N. (2020, July 20). Malaysia surpasses 26 countries to become 2nd in Asia for ... cyber-bullying. The Sun Daily. Retrieved from

Bernama. (2021, March 7). Communications Ministry preparing cabinet paper on anti-cyberbullying laws. Malay Mail. Retrieved from

Bernama. (2021, April 24). Fahmi Reza was arrested for allegedly insulting the Queen. The Edge Markets. Retrieved from

Farik Zolkepli. (2021, May 6). Fahmi Reza summoned by Kajang police over a graphic depicting the Health Minister. The Star. Retrieved from

FMT Reporters. (2021, April 30). Fahmi Reza summoned by cops again over 2 new cases. Free Malaysia Today. Retrieved from

Kasturi, P. (2020, September 20). There's a great need for cyberbullying law. Malaysiakini. Retrieved from

Nazari, T. (2020, December 9). Malaysia Might Make Cyberbullying Illegal Soon, But Are We Ready? The Rakyat Post. Retrieved from

Nortajuddin, A. (2020, July 20). Does Malaysia Have A Cyberbullying Problem? The Asean Post. Retrieved from

Nuradzimmah Daim. (2020, April 26). 238 investigation papers opened on Covid-19-related fake news cases. New Straits Times. Retrieved from

Tang, T. (2019, May 14). A Sarawak teen jumps to death hours after asking Instagram friends if she should kill self. Malaymail. Retrieved from

Online Websites

American Bar Association (2021, March 21). Malaysia: A Preliminary Report on Criminal Proceedings Against Blogger Dian Abdullah. Retrieved from

Article 19. (2021, March 15). Malaysia: Repeal ‘fake news’ emergency ordinance. Retrieved from

Laub, Z. (2019, April 11). Hate Speech on Social Media: Global Comparisons. Council on Foreign Relations. Retrieved from

Dizikes, P. (2018, March 8). Study: On Twitter, false news travels faster than true stories. MIT News | Massachusetts Institute of Technology. Retrieved from

Yap, W.X. (2020, July 27). Malaysia Ranks 2nd In Asia For Cyberbullying Among Youth. Says.

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