In the recent LoyarBurok “Msia I Can Series: The Right To Your Privacy” on BFM Radio, which I have been reliably informed is one of the top hit links on BFM (Ed: Hardly surprising, given that it is blessed by the soft, furry touch of His Supreme Eminenceness Lord Bobo), I told a story about neighbours fighting over CCTVs which faced a neighbour’s house.
In the case of Lew Cher Phow @ Lew Cha Paw & 11 Ors v Pua Yong Yong & Anor, the occupants of a house at Skudai, Johor initiated an action against their neighbour for invasion of privacy sometime in 2007.
In this case, the Defendants had installed CCTVs around their house and one of the CCTVs captured part of the Plaintiffs’ house, notwithstanding that the CCTV also captured the front yard of the Defendants’ house. The Plaintiffs complained that they were being spied on and therefore their right to privacy had been infringed. The Defendants claimed that the CCTVs were for safety reasons.
The Plaintiffs filed an interim injunction against their neighbour requesting that the CCTVs be taken down. However, the application was dismissed by the High Court on the grounds that, among others, the tort of invasion of privacy is not recognised in Malaysia (see Lew Cher Phow @ Lew Cha Paw & 11 Ors v Pua Yong Yong & Anor  1 LNS 1256).
The case went to trial and recently the High Court allowed the CCTV to be taken down.
Justice Vernon Ong, like the judges in Maslinda Ishak v. Mohd Tahir Osman & Ors  6 CLJ 653 (impliedly recognised the tort); Lee Ewe Poh v Dr. Lim Teik Man & Anor  1 LNS 1162; and Sherrina Nur Elena bt Abdullah v Kent Well Edar Sdn Bhd (Sabah High Court Suit No. K22-187-2009-I (Unreported)), recognised the right to privacy and the tort of invasion of privacy in Malaysia.
According to the learned Judge, the test to determine whether there is an invasion of privacy of rights is:
Arising from this case are two competing values: safety and privacy. Does the defendants’ fear for their safety and security override the right to privacy of the plaintiffs? Does the CCTV surveillance constitute an intrusion or interference with plaintiffs’ right to respect for their private and family life and their home? Is the CCTV surveillance an unreasonable intrusion upon the privacy of the plaintiffs?
Ultimately this is a question of balance between the rights of the owner of the CCTV camera (the defendants) and the CCTV camera’s target (the plaintiffs).
The learned Judge held that the balance lies on the Plaintiffs. The right to privacy is a fundamental human right. On the peculiar facts of this case, the right to privacy consists of the plaintiffs’ right to private and family life and home. This is a basic right and need which everyone cherishes and holds dear. The well known saying that a man’s home is his castle holds true.
The recognition of privacy rights and invasion of the same have a tremendous impact to Malaysians. This would include the following:
The above list is non exhaustive. It is interesting to see how the right of privacy will develop further in Malaysia.
Download Written Judgement of Lew Cher Phow @ Lew Cha Paw & 11 Ors v Pua Yong Yong & Anor by Justice Vernon Ong.