Review CMA’s section 233

The Centre for Independent Journalism (CIJ) is concerned that the courts sentenced Chow Mun Fai to the maximum jail sentence under section 233 of the Communications and Multimedia Act 1998. According to reports, the Facebook user had pleaded guilty to making disparaging remarks about Islam through an offensive Hari Raya greeting.

Mr Chow’s remarks on Facebook were undoubtedly crass and insensitive, and constitute a crime under section 233. However, the breadth of section 233 makes it an offence to post offensive content with the intention to “annoy” another person. This makes any possible crimes under section 233 unspecific and arbitrary. Whether or not a person has been annoyed is extremely subjective.

CIJ stresses that hate speech cannot be condoned. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence should be legislated against. Those who are guilty of advocating racial or religious hatred and inciting discrimination, hostility or violence should not escape punishment, regardless of what medium is used. Whether Mr Chow’s opinions constitute hate speech, however, is debatable – he did not advocate violence, his remarks were aimed at expressing his own ill-formed opinions, rather than inciting others to do the same.

 

We note that there has been a tendency to refer to hurt feelings when charges are brought under section 233. CIJ would like to point out that hurting another person’s feelings is not listed as an offence under section 233. We are also of the view that “hurt feelings” on its own cannot constitute an offence. There must be a further element of incitement to discrimination, hostility or violence that must be demonstrated, and it would thus be useful if the public prosecutor and the courts could demonstrate the link when charging or sentencing those accused of such offences. 


CIJ is of the view that the most serious penalties should be reserved for instances where a clear intention to incite discrimination, hostility or violence through advocacy of racial or religious hatred can be shown. This is in line with Article 10 of the Federal Constitution which guarantees freedom of speech and expression and allows Parliament to impose legitimate restrictions in the interests of national security, public order and public morality. It is also in line with international human rights standards on freedom of expression.

Freedom of expression is not an absolute right and carries with it certain responsibilities. The imposition of restrictions however must be in line with the Federal Constitution, and cannot go beyond the specific grounds listed in Article 10. Restrictions on freedom of speech that are too broad and unspecific are unconstitutional and produce a chilling effect.

CIJ thus calls on the government to review section 233 of the Communications and Multimedia Act to ensure that it complies with Article 10 of the Federal Constitution as well as international human rights standards on freedom of expression. Greater specificity on exactly what kind of speech is prohibited would protect citizens’ right to freedom of expression while also ensuring that those who use hate speech to incite hostility and violence are adequately punished.

Sonia Randhawa
Director, Centre for Independent Journalism

 
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