26 June, 2019
The recent sex video scandal allegedly involving a prominent politician has raised interesting questions about privacy laws in Malaysia. Can sensitive and private information about anyone be shared without repercussions? Malaysian authorities such as the Malaysian Communications and Multimedia Commission (MCMC) have gone to the extent of warning the public to stop spreading such videos.
Does the right to privacy exist in Malaysia? Here are 5 things we should know on privacy laws in Malaysia:
The Federal Constitution Does Not Specifically Provide a Right to Privacy
Unlike other jurisdictions where the fundamental right to privacy is specifically laid out and provided for in its constitution, the Malaysian Federal Constitution does not specifically stipulate that a person has a right to privacy.
To date, there is no statutory enacted law that guarantees a Malaysian citizen of his privacy not to be invaded, save for the Personal Data Protection Act 2010 (“PDPA”), which deals specifically with personal data rather than “privacy” itself (more on that below).
S509 of the Penal Code does make it a criminal offence to “intrude upon the privacy” of a person; however this strictly relates to actions which insult the modesty of a person. Upon conviction, an offender may be punished with imprisonment for a term which may extend to 5 years or with a fine, or both.
The Communications and Multimedia Act 1998 also prohibits the provision of offensive content (which is indecent, obscene, false or menacing) with the intent to annoy, abuse, threaten or harass any person. However, this is in respect of offensive content and not specifically about the right to privacy.
Personal Data is not the same as Privacy
It is a common misconception that the PDPA is a “privacy rights” legislation. While privacy and personal data can often be interlinked, the PDPA is narrow in its application as it deals with personal data privacy as opposed to privacy rights in general. In contrast, the right to privacy relates to the right to be left alone and live free from intrusions by others.
For example, there is no recourse under the PDPA if your neighbour decides to spy on you by gazing into your bedroom through binoculars.
The Personal Data Protection Act 2010
What does the PDPA deal with, then? The PDPA basically provides provisions that regulates how personal data can be collected, processed and used when it comes to dealing with personal data of their employees, suppliers, and customers. As such, the PDPA regulates data privacy and data protection.
Can you sue someone for Invasion of Privacy?
In Malaysia, there have been cases of individuals initiating legal action on the basis of “invasion of privacy”, even though there is no specific legislation about privacy rights. In this regard, there are contradictory views by the Malaysian courts as to whether this is permissible.
In Ultra Dimension Sdn. Bhd. v Kook Wei Kuan it was held that the invasion of privacy rights is not actionable in Malaysia, unless the content was so highly offensive in nature and showed a person in an embarrassing position or pose.
A contrary view was taken in the case of Maslinda Ishak v Mohd Tahir Osman & Ors., where the Plaintiff was granted damages for invasion of privacy which left her humiliated, traumatised and suffering from mental anguish (in this case, the Defendant took photos of the Plaintiff urinating without her consent). It is also worth pointing out that the Defendant’s conduct in this case was also a criminal offence under S509 of the Penal Code.
In Lee Ewe Poh v Dr. Lim Teik Man , a doctor had taken photographs of the Plaintiff’s anus during a medical procedure without prior consent of the Plaintiff. The doctor alleged that the photographs were taken in a clinical environment and intended for the Plaintiff’s medical record. The Court held that the failure of the doctor to obtain prior consent from the Plaintiff before taking the photographs constituted an invasion of privacy. However, as the act was not calculated to injure her feelings, the Plaintiff was awarded nominal damages of RM 25,000 and costs of RM 10,0000. The Court also ordered that the memory card containing the photographs be destroyed.
Similarly, in Lew Cher Phow & Ors v Pua Yong Yong & Anor, the Court ordered the Defendants to dismantle their CCTV that was looking into the Plaintiffs’ property on the basis that the Defendant’s fear for their safety and security cannot override the Plaintiffs’ right to privacy. The Court found that continuous CCTV surveillance by the Defendants was an unwarranted violation of the Plaintiffs’ right to privacy.
Privacy in the Workplace
The right to privacy may also be interpreted differently in the context of an employer-employee relationship.
For example, Industrial Court cases have shown that secret recordings of employees/employers made without consent may be used as evidence in Court even though they may be unethical (although this depends on various factors such as whether the transcripts of the recordings can be accurately verified, whether the chain of custody is broken, etc).
In another case, an employee placed a camera on his desk with a view to allegedly deter his colleagues from harassing him. Another employee seated in front of the camera lodged a complaint to the Company’s HR department that his privacy was invaded. The Industrial Court held that there was an invasion of privacy as the other employee’s workstation is his “private space” which he is ensured control and freedom to conduct himself. The Industrial Court therefore held that the Company was entitled to direct the employee to remove the camera from his desk.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
