Right to Internet vs. Right to Access Internet: Constitutional Limits on Banning Social Media Access for Youth
The growing calls to restrict youth access to social media reflect a deeper constitutional unease: how far can the state regulate digital space before it begins to hollow out the very rights it purports to protect?
In Malaysia, this debate is often
framed as a matter of public policy - centred on safety, morality, and
psychological wellbeing. Yet, at its core, it is a constitutional question
about whether fundamental liberties under Part II of the Federal Constitution
retain meaning when civic life has migrated online.
The distinction between a “right
to the internet” and a “right to access the internet” is therefore decisive. It
forces us to confront whether constitutional freedoms survive when access to
their primary medium is curtailed.
Article 10 guarantees freedom of
speech, assembly, and association, but its meaning has been shaped
significantly by judicial interpretation. In Sivarasa Rasiah v Badan
Peguam Malaysia, the Federal Court articulated a transformative
principle: restrictions on fundamental liberties must be reasonable and
proportionate.
The Court emphasised that the
phrase “necessary or expedient” in Article 10(2) cannot be read literally to
grant unfettered legislative discretion. Instead, it held that “the
restriction must be one that is proportionate to the object sought to be
achieved.” This marked a decisive shift towards a structured constitutional
analysis grounded in proportionality.
This principle is fatal to
blanket restrictions on youth access to social media. A general ban is not
tailored, not minimal, and not proportionate. It extinguishes the medium rather
than regulating the harm. In constitutional terms, it fails at the first
hurdle: it cannot be said to be a measured response when it removes an entire
domain of expression.
The tension, however, becomes
more complex when viewed alongside Public Prosecutor v Azmi Sharom.
In that case, the Federal Court upheld the constitutionality of the Sedition
Act, demonstrating continued judicial deference to Parliament in matters framed
as public order.
The Court observed that “Parliament
is empowered to impose such restrictions as it deems necessary or expedient,”
reinforcing the breadth of legislative authority under Article 10(2). The
result is a constitutional duality: while Sivarasa introduces
proportionality, Azmi Sharom reflects enduring deference.
This doctrinal tension is where
the debate over digital access must be situated. If Sivarasa is applied
robustly, broad restrictions on social media access for youth should fail
constitutional scrutiny. If the deferential posture in Azmi Sharom
prevails, such measures risk being upheld despite their sweeping impact. The
outcome depends less on constitutional text than on judicial philosophy.
Comparative constitutional
jurisprudence reinforces the argument that access to the internet is
increasingly treated as integral to freedom of expression. In Anuradha Bhasin v
Union of India, the Supreme Court of India held that “freedom of speech and
expression through the medium of the internet is an integral part of Article
19(1)(a).”
While the Court stopped short of
declaring a freestanding right to the internet, it recognised that access is
functionally necessary for the exercise of constitutional freedoms.
Importantly, it subjected internet shutdowns to proportionality review, requiring
that restrictions be temporary, necessary, and subject to procedural
safeguards.
Similarly, the Court of Justice
of the European Union in Scarlet Extended SA v SABAM rejected
broad internet filtering obligations on the basis that they disproportionately
interfered with fundamental rights, including freedom of expression and
information.
The Court stressed that
regulatory measures must strike a fair balance and cannot impose general
monitoring obligations that undermine the essence of those rights. This
reflects a broader European rights-based approach, where access to digital
space is treated as inseparable from expressive freedom.
In the United States, although
the Constitution does not explicitly recognise a right to internet access, the
Supreme Court in Packingham v North Carolina described social
media as “the modern public square.”
The Court invalidated a law
prohibiting registered offenders from accessing social media, holding that such
a broad restriction impermissibly burdened lawful speech. The judgment
recognised that digital platforms are central to participation in public discourse,
and that exclusion from them carries serious constitutional implications.
Taken together, these comparative
cases establish a clear trajectory: while courts may not explicitly recognise a
standalone right to the internet, they increasingly acknowledge that access to
digital platforms is indispensable to the exercise of existing rights. This
supports a functional interpretation of constitutional liberties - one that
Malaysia’s courts cannot ignore.
Returning to the Malaysian
context, the protection-based argument for restricting youth access must be
critically examined. There is no doubt that online harms are real. Adolescents
face cyberbullying, grooming, and exposure to harmful content, all of which
carry psychological and social risks.
However, constitutional
adjudication is not satisfied by identifying legitimate aims. It requires an
assessment of whether the means adopted are proportionate. A blanket
restriction fails this test because it conflates risk with medium. It assumes
that the only way to address harm is to eliminate access, rather than regulate
conduct.
This approach is constitutionally
problematic because it mirrors an overbroad logic that would be unacceptable in
other contexts. One would not ban public assemblies entirely to prevent
disorder, nor prohibit speech wholesale to avoid offence. Yet, this is
precisely the effect of broad digital restrictions. They remove the platform
rather than address the harm.
Article 8 adds another layer of
concern. Equality before the law requires that restrictions be applied
rationally and without arbitrariness. Blanket bans risk overgeneralisation,
treating all youth as equally incapable of responsible participation. More critically,
they raise the possibility of selective enforcement.
In practice, digital regulation
is often uneven, and perceptions that laws are applied more aggressively
against dissenting voices undermine constitutional legitimacy. For a generation
that experiences governance primarily through digital interaction, such
perceptions are deeply consequential.
Article 5 further extends the
analysis, demanding that personal liberty be understood within contemporary
realities. In a digital age, liberty includes the ability to participate in
social and political life without undue interference. Restrictions on access,
combined with surveillance and monitoring, create a chilling effect.
As the Federal Court in Sivarasa
recognised, fundamental liberties must be interpreted generously, not narrowly.
A narrow interpretation that excludes digital participation risks reducing
liberty to a formal abstraction.
The broader danger is the gradual
hollowing of constitutional rights. When access to digital platforms is
restricted, the practical ability to exercise freedom of speech, assembly, and
association is diminished.
Rights remain on paper, but their
substance erodes. Over time, this creates a culture of self-censorship and
disengagement, particularly among youth. Constitutional guarantees lose their
lived meaning.
What is required is not
deregulation, but calibrated regulation. The state has a legitimate role in
addressing online harms, but it must do so through targeted measures:
regulating harmful content, enhancing platform accountability, and promoting
digital literacy.
These approaches align with the
proportionality principle articulated in Sivarasa and are consistent
with comparative jurisprudence. They address specific harms without
extinguishing the underlying rights.
Ultimately, the question is
whether Malaysia’s constitutional framework will evolve to recognise that
digital access is integral to modern liberty. The Constitution need not
explicitly guarantee a right to the internet.
It need only be interpreted in a
manner that ensures existing rights remain meaningful. As comparative courts
have recognised, the issue is not about creating new rights, but about
preventing existing ones from becoming obsolete.
In the digital age, access is not
merely a technical matter, but it is constitutional. To restrict it broadly is
to risk transforming fundamental liberties into symbolic promises.
The true measure of
constitutional fidelity lies not in the declaration of rights, but in whether
they are meaningfully realised in the spaces where people actually live their
lives.
For Malaysia’s youth, that space
is undeniably digital.
References
Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 CLJ 507-528
Public Prosecutor v Azmi Sharom (2015) - https://globalfreedomofexpression.columbia.edu/cases/public-prosecutor-v-azmi-bin-sharom/
Anuradha Bhasin v Union of India (2020) - https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/
Scarlet Extended SA v SABAM (2011) - https://globalfreedomofexpression.columbia.edu/cases/scarlet-extended-sa-v-sabam/
Packingham v North Carolina (2017)- https://www.supremecourt.gov/opinions/16pdf/15-1194_08l1.pdf
Federal Constitution of Malaysia. (1957). - https://lom.agc.gov.my/ilims/upload/portal/akta/LOM/EN/Federal%20Constitution%20(Reprint%202020).pdf
Blick, A. (2023). Your constitution: The essentials.
Constitution Society. - https://consoc.org.uk/publications/your-constitution/
Freedom House. (2025). Freedom on the net 2025: Malaysia.
- https://freedomhouse.org/country/malaysia/freedom-net/2025
Rosli, S. E. N., Adnan, W. H., & Aziz, A. A. (2021).
Online content risk among adolescents: Reviews on Malaysia law and policy. Journal
of Media and Information Warfare, 14(2), 31–42.
OECD. (2024). Children in the digital environment:
Revised typology of risks. OECD Publishing. - https://www.oecd.org/en/publications/children-in-the-digital-environment_9b8f222e-en.html
Livingstone, S. (2014). Developing social media literacy:
How children learn to interpret risky opportunities on social network sites.
Communications, The European Journal of Communication Research, 39(3): 283–303.
-https://researchonline.lse.ac.uk/id/eprint/62129/1/Developing%20social%20media%20literacy.pdf
Malaysian Communications and Multimedia Commission. (1998).
Communications and Multimedia Act 1998. - https://www.mcmc.gov.my/en/legal/acts/malaysian-communications-and-multimedia-commission
Note: The research for this commentary article was
conducted between 25 February 2026 and 20 March 2026, and all materials were
sourced within this period.
I am pleased to share that my commentary, “Right to Internet vs. Right to Access Internet: Constitutional Limits on Banning Social Media Access for Youth,” has been published in the UM Law Constitution Bulletin (UMCT Consti Bulletin 25/26, Volume 3, Feb/Mar) by the Faculty of Law, Universiti Malaya, one of Malaysia’s premier law schools and a leading regional centre for legal scholarship and constitutional discourse.
UMCT Consti Bulletin 25/26: [Volume 3] Feb/Mar - <https://canva.link/y87r8i0gj755k79>
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