Right to Privacy In Malaysia
Introduction
Imagine enjoying a pleasant meal at a restaurant, accompanied by some light-hearted music and casual dance moves. After returning home and resuming your usual activities, you are suddenly overwhelmed by a flood of messages and notifications on your phone. To your dismay, you discover that a video of your meal, featuring your impromptu dance, has been widely shared on social media without your permission. This situation raises a critical legal question: can you commence a civil lawsuit against the individual who recorded and distributed this video, given that it was done without your consent? In Malaysia, is an invasion of privacy recognized as an actionable tort? This article will explore the legal framework and relevant case law to determine whether Malaysian law recognizes invasion of privacy as an actionable tort.
In Malaysia, the right to privacy is constitutionally recognized under Article 5(1) of the Federal Constitution, which guarantees personal liberty. The Federal Court’s ruling in Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 MLJ 333 affirmed that personal liberty includes the right to privacy, but this case primarily addressed issues related to political participation rather than privacy directly.
However, this constitutional protection pertains to public law and does not extend to private law remedies. In the case Beatrice a/p At Fernandez v Sistem Penerbangan Malaysia [2005] 3 MLJ 681, the Federal Court clarified that Article 8 of the Malaysian Constitution, which prohibits discrimination, does not apply to private agreements. This ruling highlights a limitation in the Constitution’s ability to protect individual privacy from private parties.
Despite indications that privacy is viewed as a fundamental right in Malaysia, the traditional interpretation of “personal liberty” and the divide between public and private law create difficulties in establishing a constitutional privacy tort.
Judicial Interpretations and Tort Recognition
The recognition of privacy as a distinct tort in Malaysian law is contentious and has evolved through various judicial decisions. The key cases illustrate conflicting views:
1. Ultra Dimension Sdn Bhd v Kook Wei Kuan [2004] 5 CLJ 285
Facts: The appellant took a photograph of kindergarten students in an open area and used it in an advertisement published in two local newspapers. The respondent, one of the students featured in the photograph, claimed this constituted an invasion of privacy and a breach of confidence, seeking damages from the appellant. The appellant contended that the respondent’s claims should be dismissed because Malaysian law does not recognize invasion of privacy as a standalone legal cause of action.
Court’s Decision: Faiza Tamby Chik J agreed with the appellant, ruling that invasion of privacy was not an actionable tort in Malaysia. The judge affirmed that a claim for breach of privacy could only be actionable if it fell within the scope of an established tort, such as defamation, trespass, infringement of copyright, or nuisance.
2. Maslinda Ishak v Mohd Tahir Osman [2009] 6 CLJ 653
Facts: The appellant, Maslinda Ishak, was arrested and photographed in a degrading situation by an officer, who was later convicted for the privacy breach. She sued the officer and the agencies involved (RELA, JAWI, and the Government) for negligence, not explicitly for invasion of privacy.
Court’s Decision: The Court of Appeal found the co-defendants vicariously liable for the officer’s actions. The court’s recognition of the privacy breach was in the context of negligence rather than as a standalone tort of invasion of privacy. The case highlighted the invasion of privacy as a critical aspect of the negligence claim rather than establishing it as an independent cause of action. The court did find the co-defendants vicariously liable, but the claim was fundamentally about negligence, not establishing privacy invasion as a distinct tort.
3. Dr Bernadine Malini Martin v MPH Magazine Sdn Bhd [2010] 7 CLJ 525
The Court of Appeal addressed the issue of whether invasion of privacy is recognized as an actionable tort in Malaysia.
Facts: The case involved the unauthorized use of Dr. Bernadine Malini Martin’s photograph, which was published by Female magazine in an advertisement without her consent. This action was clearly an invasion of her privacy.
Court Decision: Both the trial court and the Court of Appeal concluded that, despite the privacy breach, invasion of privacy was not recognized as an independent tort in Malaysia. The Court of Appeal upheld the trial court’s decision, emphasizing that the legal framework in Malaysia did not provide for a standalone cause of action specifically for invasion of privacy.
4. Lee Ewe Poh v Dr Lim Teik Man [2011] 4 CLJ 397
Facts: The plaintiff, Lee Ewe Poh, sued Dr. Lim Teik Man, a medical doctor, for taking two unauthorized photographs of her private part (anus) before and after a medical procedure. These photographs were taken without her consent while she was under anesthesia. The plaintiff discovered the photos from a conversation with a nurse and was deeply distressed by the potential exposure of these intimate images. Lee Ewe Poh sued for invasion of privacy, arguing that the unauthorized photographs violated her personal privacy and dignity.
Decision : The Judicial Commissioner, Chew Soo Ho JC, referenced the decision in Maslinda Ishak v Mohd Tahir Osman to argue that the tort of invasion of privacy had been indirectly endorsed by the Malaysian courts. Chew Soo Ho JC noted that while Maslinda Ishak did not directly establish invasion of privacy as a standalone tort, it suggested a departure from the traditional English law view that did not recognize privacy breaches as actionable. The court acknowledged that the concept of invasion of privacy was gaining recognition under Malaysian common law, though it did not fully address whether it constituted a distinct cause of action. Despite the acknowledgement of privacy concerns, the court did not delve into the specific elements of the tort of invasion of privacy. Instead, it chose to resolve the case by applying the legal principles related to breach of confidence. The court thoroughly examined the elements of breach of confidence, focusing on whether the doctor’s actions breached a duty of confidence owed to the plaintiff.
This approach emphasized analyzing the case through the lens of breach of confidence rather than directly addressing the privacy tort.
5. Mohamad Izaham Mohamed Yatim v Norina Zainol Abidin [2015] 7 CLJ 805
In this case, the High Court provided a clear analysis of the status of the tort of invasion of privacy in Malaysian law.
Facts: The plaintiff, convicted under the Film Censorship Act 2002, sued police officers and prosecutors for invasion of privacy, claiming that their search and confiscation of explicit material, including private videos of him and his wife, constituted a privacy breach.
Decision: Vazeer Alam Mydin Meera J concluded that invasion of privacy is not recognized as a distinct tort in Malaysia. The judge clarified that while Maslinda Ishak mentioned privacy invasion, it was framed within negligence rather than as a standalone tort. In contrast, the decision in Dr Bernadine Malini Martin explicitly denied the recognition of invasion of privacy as a tort, and this later ruling prevails. The judge also referenced an earlier case, Ultra Dimension Sdn Bhd v Kook Wei Kuan, which similarly found no actionable tort for privacy invasion, emphasizing that privacy claims must fit within existing torts like defamation or breach of confidence.
The High Court affirmed that, based on current legal precedents, invasion of privacy is not an actionable tort in Malaysia, despite some calls for legal reform in this area.
6. Chan Ah Kien v Brite-Tech Berhad [2019] 1 LNS 2277
In this case, the High Court addressed the issue of privacy in the context of corporate disclosure:
Facts: The plaintiff, a director of a listed company, claimed his privacy was violated when his salary details were disclosed to shareholders. He argued that these details were confidential and their release constituted an invasion of privacy.
Decision: Azimah Omar J found that the director’s salary was not private or confidential because such information is required to be included in the company’s annual report, a public document. Consequently, the claim was dismissed. The judge praised the decision of Vazeer Alam J in Mohamad Izaham Mohamed Yatim v Norina Zainol Abidin, noting it provided clear guidance on privacy laws in Malaysia. Azimah Omar J agreed that the tort of invasion of privacy could apply to physical breaches of privacy but not to informational privacy breaches, which have not been addressed as a distinct tort in Malaysian law.
7. Kinta Riverfront Hotel & Suites Sdn Bhd v Chang Yok Kee [2020] 3 CLJ 571
In Kinta Riverfront, the High Court addressed the relationship between the tort of invasion of privacy and negligence.
Facts: Guests at the appellant’s hotel sued the hotel after their former boyfriend gained unauthorized entry into their room at night. The guests claimed damages, alleging an invasion of privacy.
Decision: Mohd Radzi Harun JC emphasized that the tort of invasion of privacy is distinct from the tort of negligence. Citing Mohamad Izaham Mohamed Yatim, the judge noted that while damages for privacy breaches might be awarded under negligence if all its elements are met, the claim in this case was based on negligence, not privacy. The court clarified that the respondents’ claim should be evaluated under the tort of negligence, not as an actionable breach of privacy.
Conclusion
The current state of right to privacy in Malaysia remains ambiguous and divided. The debate as to whether invasion of privacy is an actionable tort is still ongoing with conflicting decisions. Despite some judicial attempts to recognize privacy invasion as an actionable tort, the prevailing stance is that it is not an independent cause of action. The courts have generally leaned towards addressing privacy issues within the framework of existing torts like negligence and breach of confidence. The legal community continues to grapple with these inconsistencies, reflecting a broader need for clearer statutory guidelines or legal reforms to address privacy concerns comprehensively.
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