Shamsher Singh Thind wanted to quash an administrative request that resulted in users of the social media site in Malaysia being blocked from accessing his May 2024 posting.

In his application to court, Shamsher claimed that the Malaysian Communications and Multimedia Commission (MCMC) had violated his freedom of speech by blocking the post.

He wanted the court to declare the regulator’s actions illegal. He also wanted MCMC to drop its “directive” to Facebook calling for the post to be blocked.

However, the High Court today ruled that the decision to remove the post was ultimately made by Facebook, not MCMC, and hence could not be subjected to judicial review.

The court said social media platforms have the final say in content moderation, even when prompted by regulators such as MCMC.

In his post, Shamsher had sought to link the award of a government contract to the husband of a Cabinet minister.

The post sparked intense debate online, prompting MCMC to request that Facebook restrict its visibility.

According to Shamsher, Facebook subsequently blocked the post from being viewed within the country, after “a legal and human rights assessment”.

In his decision today, Justice Anand Ponnudurai said MCMC’s action was not a “decision” which the court could review. He said the decision was made by Facebook, and that MCMC had only issued a request for action.

Anand also said Shamsher had failed to present an arguable case to secure leave for judicial review.

Describing the legal request by MCMC as an administrative act, the judge said it was not one that is legally enforceable.

“Any recourse, if at all, is against Facebook, and possibly MCMC, in the civil courts,” Anand said.

Earlier, Shamsher’s lawyer, A Srimurugan, said his client wanted the court to declare that MCMC had no legal power to issue its “directive”.

“MCMC does not have authority under the law to issue a directive to Facebook instructing them to remove content,” he said.

Srimurugan, who appeared with J Gunamalar, said that although MCMC’s action was referred to as an “administrative request” it took the form of a directive.

“Whether it is called an administrative request or otherwise, the action needs to be scrutinised by the court. The attorney-general in his affidavit refers to it as an ‘administrative request’, while Facebook calls it a ‘legal request’.

“The issue here revolves around the labels being used. We interpret it as an order or directive from MCMC,” he said.

In written submissions, the attorney-general, had asked for the application to be dismissed, saying the MCMC’s administrative request was “neither susceptible nor amenable to a judicial review application”.

The court made no order as to costs.

The attorney-general was represented by federal counsel Aliza Jamaluddin.

Shamsher told FMT he is unlikely to appeal.

“The judge was not wrong in his decision and I have made my point already,” he said.