Right to Privacy in Malaysia: Do we have it?

(Photo by Seira Sacha)

(Photo by Seira Sacha)

If someone installs a CCTV in front of your house, can you stop him from doing so? If our Prime Minister sends his best wishes for the festive seasons to your email and mobile, is he invading your privacy? Whats the state of the right to privacy, and invasions of your privacy, in Malaysia?

Long story short, yes, our constitution recognises the right to privacy under article 5 of the constitution according to the recent Federal Court case of Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 at 519. Article 5(1) of the Constitution provides that “No person shall be deprived of his life or personal liberty save in accordance with law.” According to Gopal Sri Ram FCJ (as then he was) in the Sivarasa case, the right to personal liberty includes the right to privacy.

What is a “right to privacy”?

The right to privacy is basically the right to be left alone and to live the private aspects of one’s life without being subjected to unwarranted, or undesired, publicity or public disclosure. It is also a right of an individual to seclude oneself or information about himself and thereby reveal himself selectively. For example, the right of being strip searched (and probably do some squats and get recorded see: squatgate).

Invasion of Privacy

However, althought the right to privacy provided by the Constitution, is there an actionable right against someone who invaded your privacy?

Notwithstanding the recognition of such right, such right may not be enforced by an individual against another private individual for the infringement of rights of the private individual as constitutional law (substantive or procedural) will take no cognisance of it (Beatrice Fernandez v. Sistem Penerbangan Malaysia & Anor [2004] 4 CLJ 403).

The tort of invasion of privacy is not a recognized tort under common law (Malone v MPC [1979] Ch 344; Kaye v Robertson [1991] FSR 62 (CA); Khorasandjian v Bush [1993] QB 727, 744 (CA); Wainwright v Home Office [2003] UKHL 53, [2003] All ER (D) 279 (Oct), House of Lords).

The tort of invasion of privacy is not recognized in Malaysia. This basically means that you cannot sue someone for invading your privacy.

The Malaysian High Court cases of Ultra Dimension Sdn. Bhd. v. Kook Wei Kuan [2004] 5 CLJ 285 and Lew Cher Phow @ Lew Cha Paw & 11 Ors v. Pua Yong Yong & Anor [2009] 1 LNS 1256 Johor Bahru High Court Civil Suit No. MT 4-22-510-2007 had held that invasion or violation of privacy is not a recognized tort or a cause of action in Malaysia. In the former case, the Plaintiffs failed in their action for invasion of privacy against the Defendant for taking a photograph of a group of kindergarten pupils, including the Plaintiffs child, at an open area outside the kindergarten and published it in two local newspapers. As for the latter case, the Plaintiffs failed in their application to restrain the Defendants from having a CCTV which faces their house and to remove the same.

Similarly in the High Court case of Dr Bernadine Malini Martin v. MPH Magazines Sdn Bhd & Ors [2006] 2 CLJ 1117, the Court again stated that invasion of privacy is not an actionable wrongdoing.

However, the Court of Appeal judgement of Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653 gave light to the tort of invasion of privacy. Some of you may recall the incident where a guest relations officer (GRO) was photographed easing herself in a truck by a volunteer reserve corps member (Rela) after the GRO was detained in a raid at a club in 2003. The GRO sued the Rela member, Director General of RELA, the Director of JAWI and the Government of Malaysia. She was granted damages for the wrongdoing. However, the case was not on point as to whether the tort of invasion of privacy is a recognized tort in Malaysia.


YB Elizabeth Wong, YB Dr Chua Soi Lek & Actress Nasha Aziz were all victims of privacy invasion.

The case of Lee Ewe Poh v Dr. Lim Teik Man & Anor [2010] 1 LNS 1162 is the first reported Malaysian case that recognizes the invasion of privacy as an actionable tort. In this case, the doctor had taken picture of the Plaintiff’s anus during a medical procedure without informing the Plaintiff. The doctor’s reason for taking such picture was for medical purpose and claimed that taking of photographs during the course of the medical procedure without the consent of the patient is an acceptable practice.

The Court of Appeal judgement of Maslinda Ishak was referred in the judgement of Lee Ewe Poh and the learned Judicial Commissioner relied on the said case to hold that invasion of privacy rights is actionable in Malaysia.

The Learned Judicial Commissioner held in the case of Lee Ewe Poh that (at page 6 of judgement):

The learned trial judge found for Maslinda Ishak against the 1st defendant but not against the other respondents for whom she appealed. The Court of Appeal allowed her appeal and held the respondents to be jointly and severally liable for the wrongful act of their agent as well as vicariously liable. Although Maslinda Ishak’s case is not directly on point, the fact remains that the High Court in so finding has departed from the old English law that invasion of privacy is not an actionable tort and our Court of Appeal indirectly, though this issue was not canvassed, seems to endorse such cause of action when the pleadings were specifically referred to and C.A. did not overrule invasion of privacy as a cause of action on ground that it is not one in line with the English law. Since such a cause of action has been accepted as a cause of action under our common law, it is thus permissible for a plaintiff to found his/her action on it. Drawing an analogy of this Court of Appeal case, I am inclined to hold the view that since our courts especially the Court of Appeal have accepted such an act to be a cause of action, it is thus actionable. The privacy right of a female in relation to her modesty, decency and dignity in the context of the high moral value existing in our society is her fundamental right in sustaining that high morality that is demanded of her and it ought to be entrenched. Hence, it is just right that our law should be sensitive to such rights. In the circumstances, Plaintiff in the instant case ought to be allowed to maintain such claim.

Both Maslinda Ishak and Lee Ewe Poh’s cases are in respect of women’s modesty. It will be interesting to see whether how our right to privacy would extend to. For example, will it extend someone’s surfing habits? If someone had recorded everything you serve on the Internet, would that be an invasion of privacy? (On an interesting note, Google does store your Google search keywords).

Lee Ewe Poh’s case is a High Court decision thus may not be followed by other courts of the same or higher jurisdiction. However, Sivarasa’s case was not referred in the decision of Lee Ewe Poh. With Sivarasa’s case, it will be interesting to see whether the recognition of tort of invasion of privacy will be strengthened by it.

Misuse of Private Information

The recognition of right to privacy in Sivarasa’s case may be a stepping stone to the expansion of the tort of breach of confidence to include “misuse of private information”, a term coined by Lord Nicholls in the House of Lords case of Campbell v. MGN Limited [2004] UKHL 22, in Malaysia. In this case, the House of Lords held that the publication of articles by the Mirror newspaper regarding well known model Naomi Campbell’s attendance at Narcotics Anonymous meetings and her efforts to overcome her addiction to drink and drugs was a misuse of private information. Basically, this tort protects information that is “private”. It affords respect for one aspect of an individual’s privacy.

Closing

If the tort of invasion of privacy or misuse of private information is recognised in Malaysia, this may be used as a remedy against those who had breached the Malaysian Personal Data Protection Act 2010 (which is not in force yet). The present Personal Data Protection Act 2010 does not provide for damages to data subjects for the breach of the said Act unlike the UK Data Protection Act 1988. With such torts, this may bridge the gaps in the Malaysian Personal Data Protection Act 2010.

The effect of the recognition of the privacy rights in Malaysia is far reaching. It may, in no particular order, affect the following:

  • Employees’ rights especially when it comes to employee monitoring;
  • Authorities’ right to conduct searches such as strip searches or search of a premise or vehicle;
  • Internet users’ rights such as the right to remain anonymous (note: bloggers have problem claiming anonymity pursuant to the case of The Author of a Blog v Times Newspapers Limited [2009] EWHC 1358 (QB) where the UK Court held that blogging is a public activity);
  • Details of relationships such as intimate details of partners including intimate pictures;
  • The right of the media to report news regarding individuals;
  • Rights of public figures such as politicians and celebrities; and
  • The position of the admissibility in Court proceedings of illegally obtained evidence which infringes’ an individual’s right to privacy

Well, if you ask me whether the Prime Minister has infringed your right to privacy or had committed misuse of private information, when he sent festive greetings (although I understand it is for good intention) to your emails or mobile phone, my answer is that, it will be an interesting test case in Malaysia!

Foong Cheng Leong is a blogger pretending to be a lawyer, and a lawyer pretending to be a blogger. He blogs here, and tweets at @xescx.


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Foong Cheng Leong is a blogger pretending to be a lawyer, and a lawyer pretending to be a blogger. He blogs at xes.cx and foongchengleong.com, and tweets at @xescx and @FCLCo.

Posted on 21 February 2011. You can follow any responses to this entry through the RSS 2.0.

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18 Responses to Right to Privacy in Malaysia: Do we have it?

  1. The privilege to protection is essentially the privilege to be allowed to sit unbothered and to experience the private parts of one's existence without being subjected to unjustifiable, or undesired, reputation or open revelation. It is additionally a privilege of a person to isolate oneself or data about himself and accordingly uncover himself specifically. For instance, the privilege of being strip looked

  2. flhome

    Outstanding post! I really impressed to read the great information that you have posted. I appreciate you for this sharing and want to say that keep sharing such kind of posts. visit it for plumber

  3. Infringed

    Hi,
    This becomes very interesting as it seems that one's privacy is somewhat legally protected but yet Private Investigators exist to do the opposite
    In the event that an individual is subjected to PI surveillance. Can this be regarded as privacy intrusion? Remember, one has the right to choose to live in a life as secluded as the individual wants.

  4. I like your blog i enjoyed reading your blog it was amazing thanks a lot.

  5. We need our own privacy, no one can disturb it. You are right, if u angry because someone can disturb ur privacy.

  6. CH TING

    Hi, May i ask if i have the right to bring someone to court if he took photographs of my private property? privacy act?

    Thanks

  7. Aster

    continue —–Part 2
    In summary:-
    (A) Serious sexual harassment happened in Averis Sdn Bhd because Aster discovered the crime, “manipulated report” in MRCC Function… invasion of privacy done via advanced technology owned by Royal Golden Eagle. Threaten to be mistress in order to be save from getting harm, rejected by Aster later become victim of serious abuse & sexual harassment. Video created via advanced technology, daily recording is shared & granted unlimited access to Averis's loyal employee in their own server… later humiliate Aster as "bohsia" / "MRCC super bitch", because Averis Management allowing staff to view Aster's naked body… crime happened but staff support Averis Management, not dare to expose then resigned or get rid by transfer to other places..
    (B) Major FA tower changes in FA tower since the incident happened.
    1. Deputy FA Tower Lead Leong Yoke Mee (female) being transferred
    2. FA AR Function Lead Wee Yong Huat who involved in the crime assisting FA Tower Lead Lim Ser Yong & Averis Deputy Head of shared service Chong Yeow Leong (reported in police report for investigation) promoted as FA Shipping Lead.
    3. Aster's superior MRCC Function Lead Dang Cheong Lee promoted as FA Tower Lead report to Lim Ser Yong.
    4. Averis FA MRCC Fixed Asset Team get high increment & bonus in year 2014 (performance contract 2013)
    5. All employees who critic their lust get punishment, Averis FA CM Function Lead Chris Chiu who commented Lim Ser Yong's crime, lust have to perform work of 2 function that is CM Function & AR Function (before was handle by Wee Yong Huat)
    6. Averis HR Head Lisa Lew Lu Yi, who handling Aster's complaint was resigned & left in May 2014, in April 2014 Aster reported Averis Crime for 2nd time. On May 2014 Aster made police report on Averis Sdn Bhd for 3rd time…
    7. Many Averis staff left due to this invasion of privacy but they're not dare & threaten to expose… only some clue being spread out by those who knew part of the crime done.
    8. Averis Management dare to lied in Averis FA Tower Meeting regarding dress code, siding FA MRCC Fixed Asset Team Member Emily Leong Mun Yee who always wear mini skirt by saying Averis Dress Code for female employee is 4 inches from knee instead 2 inches. In year 2012, Averis FA Tower Lead Ung Ee Jin have sent email restrict female staff on wearing mini skirt & warn is 2 inches from knee… Averis Dress Code also written very clear on this policy…. Because MRCC Team was instructed to humiliate & gain full access on Aster's personal detail & recording..
    9. Averis Management too rush to terminate Aster immediately until wrong written name….
    10. FA Tower move to 2nd floor & arrange Aster to sit alone at corner in pantry 2, claiming is present for Aster's June birthday… MRCC team even move up & down few times until the day of moving floor drag to middle of June 2014, 3 days before Aster's birthday. Claimed to be present from Lim Ser Yong..
    (C) Averis Management implemented new Exchange 2010 Mailbox Migration to eliminate all evidence because the initial crime was Averis’s Management Report. Averis / Royal Golden Eagle covered their crime by eliminating all evidence & threaten Aster in many ways for 2 years time (2013 – 2014). Employment period was 3 years.
    (D) Accuse falsely Aster being “mental ill” but Averis Management offer Aster job for 4 times become “centre of excellent”…but force to use invalid email address (prove by Averis IT staff is invalid email address, but Averis Management denied in the document created to covered it). Averis Management denied on Aster's performance contract 2013 which include team work & customer service level grade… Performance Contract 2013 created on March 2014, most of the rate was "good" & "excellent".
    Aster reported Averis’s crime to police on April, since then 4 months continuously issued Aster 5 letter including medical letter on 30th June 2014…
    (E) Reported to labour office, SUHAKAM, NGO, politicians, media assistance to locate the IP address, international interpol… etc but not result…
    Search from youtube, more than 100 voice recording uploaded to prove the case (indirectly) / refer to below link for the voice recording…. http://youtu.be/UreR5Qst04c https://youtu.be/qPn3d-e9hv8
    PLEASE DO VOICE OUT & STAND FOR JUSTICE. SUPPORT ASTER TO PROVE THE CASE MAKE AVERIS MANAGEMENT TEAM BE HELD RESPONSIBLE & GO TO JAIL! STOP CRIME RING & RAPE RING! FREE ASTER!
    Support Aster Wong (Forever Justice)

  8. Aster

    I am Aster Wong, Averis FA ex-employee under MRCC Function. I have been working there for 3 yr. However after Aster expose Averis FA manipulating their management report, AAAOF bank borrowing base report, Averis starting investigating on Aster. Using the name of investigate issue & “asked” Aster not to disclose later become serious sexual harassment which is lead by Lim Ser Yong.
    Our relationship making Aster to trust & rely on him to settle the issue but he didn’t keep his promised & later shared naked photo & video of Aster created by Averis Management using technology own by Royal Golden Eagle to all Averis loyal employees. All credible evidence have been eliminated by Averis Management by implementing Averis Mailbox migration to new Exchange 2010 server on May 2014 whereby Aster reported on Averis activity on April 2014. Invasion of Aster privacy still on & being watch by Averis staffs.
    Due to the “supervision” of Averis Management team, I think you should have notice Lim Ser Yong have change a lot in year 2013 to 2014, whereby he spend more time on holiday with you & family because he wanted to prove to Averis Management he will not help / support Aster to settle this internal commercial & civil crime.
    Most of Averis employees knew he wanted to force Aster become his mistress but later all denied the statement by providing “statement” requested by Averis Management. Corruption happened & Aster not able to expose / get support to raising law suit again Averis Sdn Bhd.
    Using the advanced technology, Averis Management & employees able to know & view Aster daily life including Aster take bath. Chris Chiu knew what had Lim Ser Yong done to me & get “punish” by instructed to handle 2 function work. Try to test him & supervise him & help Aster to prove him illegal act & crime done to Aster. They knew Averis Management playing with my naked body.
    PLEASE DO VOICE OUT & STAND FOR JUSTICE. SUPPORT ASTER TO PROVE THE CASE MAKE AVERIS MANAGEMENT TEAM BE HELD RESPONSIBLE & GO TO JAIL! STOP CRIME RING & RAPE RING! FREE ASTER!
    Support Aster Wong (Forever Justice) —–Part 1

  9. Nasser

    Two employees were chatting via their internet regarding other management staff. Someone managed to snoop to read and record their chats. This information was to the HR then used against them. they were suspended for 2 weeks with half pay while they were investigated. Is there an infringement of their privacy as the chats were between 2 people only?

  10. Rose

    Its a sad scenario in such a situation, while this tort is not recognize in Malaysia, I wish to draw your attention that many a miused of power by so-called highly educated people to cari makan by spying, and openly stalking womens,wodows or the helpless.
    Whats your opinion that as a lawyer cum blogger, those underpreviledge who are suffering helplessly, how and where is the best place for them to voice out?

  11. rzmaulana

    Hi there, I as an amateur street photography enthusiast have always been haunted by the words of a stranger while I am shooting on the streets. "You can't take my photo. You didn't ask for my permission. You're breaching my rights of privacy. I'm calling the cops. I'm going to sue you."

    While all I want to do is capture the streets of KL, I wouldn't want to drag myself to a bigger problem all by itself. Shooting film on the other hand just made it impossible to delete a photo shall someone asks, "you can't take my photo. delete it now."

    Now my question is, since Malaysia doesn't recognize the tort of invasion of privacy, am I safe to shoot on the streets? Are there any other laws that I should know that fellow loyarburok members can point out?

  12. Pingback: Right to Privacy in Malaysia: Do we have it? « Foong Cheng Leong

  13. Pingback: Right to privacy in Malaysia: Do we have it? — Foong Cheng Leong | dyvallion

  14. Laws must be written, but gauging from Bar Council's tepid, ambivalent and collusive stance even on ISA and APARTHEID, and inaction on Coercive National Service Laws, compounded by proliferation of numerous psychoactive drugs on the street – which CAN be used by vendors on the consumer without their knowledge (i.e. poisoning), Malaysia looks set to be an example of a captive populace, though the population itself, is somewhat unaware.

    Regrettably even the Rulers, the Judiciary, Bar Council, the Police and unethical users and weak minded dependents who need these mental crutches, on the same technology have not made a sound on these findings. USA itself is no better. Who knows if the devout Muslims in Middle East are the same stock of semi-automaton.

    Laws must be written, but with the mentally unethical unable to let go of their crutches, unable to think for themselves, copying people's thoughts and lacking originality like a mere hive of ants, the only hope is outside forces or natural forces that will put a stop to the hell that living on this planet is this day.

    Armageddon might be a mercy and swift justice well deserved. Let those with the ethics, courage and conscience act or suffer the consequences.

  15. These are very external issues. There in fact is nop privacy AT ALL and your pet is likely a 'control factor' as it cannot communicate if it has or has not been compromised.

    Microchip Implants, Mind Control And Cybernetics
    http://www.rense.com/general92/micro.htm

    Various Case Studies and Updates on Neurotechnology Criminals (Jan 2011) Original Articles
    http://www.facebook.com/topic.php?uid=31851551532…

    There is no privacy at all. It is just that people have no compunction about abusing technology to achieve fascism and dictatorship. These implants may be activated anytime in a person's life, and are likely implanted at birth, during vaccination, in food (which is the reason for those drinking contests), or in surgery, or for serious cases planned non-lethal accidents.

    Only a very high tech medical institute with the appropriate technology (3rd world doesn't have that, very few in developed world) has the capacity to remove these implants. In Malaysia's case fully expect the worst.

  16. Pauline Leong

    Great article. Using it for my class on law of confidence and privacy :o) Very timely indeed :o)

  17. Dear Foong, an excellent primer on the state of privacy laws in Malaysia. I think it absurd that we have a right to privacy but no enforcement from the courts. There appears to be a logic disconnect in this. What is the point of recognizing such a right if we can have no meaningful enforcement of it. I see no good reason why an infringement of privacy cannot be judicially developed to encompass invasions of privacy which are a form of trespass. I certainly hope more lawyers take the trouble to develop and push the arguments in court.

  18. Dear Foong Cheng Leong,

    Thank you and congrats, it is very good article on privacy right. it been a huge issue that Malaysian doesn't realize what the impact. i am one of the person that always have fear of being interrupt in my private life.

    talking about privacy i would address the right of privacy on voting, i always ask myself if the voting system in the country reliable. every time by election result you can see how the vote being calculate and the percentage of race voting for particular party. isn't this should be privacy for the citizen? Since every vote paper have it number to trace back to the voter ID, if the SPR manage to draw out the voter party selection isn't it possible for them to draw out whoever vote for the opposite? since the ballot box are keep in the national arcade for 5 years (if i not mistaken). there is plenty of time to sort out everyone in every constituency. i might be prejudice to not believing the system but it still a question to be concern about.

    Mr. B