Right to Privacy in Malaysia: Do we have it?

Once again, I contribute another article to local Blawg, LoyarBurok, and it is titled “Right to Privacy in Malaysia: Do we have it?

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.


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!

If you’re wondering why I write so many legal articles, well, other than for sharing information purpose and educating the public, it is also for marketing purpose.

The legal profession is a funny profession. When someone qualifies as a lawyer in Malaysia, they can work in a law firm as a legal assistant (or associate as some firms call it). Assuming that the lawyer would like to make it big in practice, he or she should aim to be a partner of a firm or proprietor of his own firm.

To be able to do so, one of the most important skills is, of course, being able to market your practice. Nobody would use your services if you are unknown.

There are many ways to market your practice. For example, attend networking events, join associations, give talks and write legal articles.

Being a young lawyer, having clients of your own is quite difficult. Getting your name out there as early as possible is important. For me, I try to as much as I can to market myself by attending conferences, give talks and write legal articles.

Writing legal article is actually quite easy. Find a topic and write it. The most difficult part of it is to find a good place to publish it. No point publishing something in a medium that has low readership. For young lawyers out there, there are Putik Lada (a column in The Star Newspaper run by the Bar Council) and Loyarburok. These two medium have wide readership. (Loyarburok has about 20,000 hits a week).

Having said that, I will be on BFM radio station to talk about social media law next Wednesday, 730am to 8am. Please tune in to 89.9FM!

Nihon Kai Japanese Restaurant @ Old Klang Road, Kuala Lumpur

A has been raving about this place being cheap and nice for the longest time. Although I live in Old Klang Road almost all my life, I have never heard of this place. A lot of people says that this place is a hidden gem.

On Valentine’s Day, A and I headed there for dinner. The place was extremely crowded and there was a line to get a table. A was smart to call to make a booking. Nihon Kai was kind enough to save the spot for us although we were half an hour late!

Nihon Kai consists of two floors. The 2nd floor is air conditioned and it has a few private rooms. You may book a room for a function.

We ordered this..

Nihon Kai Sp Maki (RM16) – sashimi and vegetable wrapped together with rice paper and with mayonnaise and ebikko on top!


A’s set dinner – Grilled Fish

My set dinner – Grilled Unagi Rice (RM34) – very (or maybe too generous) with their unagi. My stomach almost exploded after finishing the stuff we ordered!

Overall, it was good! Food was fresh and ample. Ambiance was great. It was well worth it!

I am told that the place gets pack during dinner. Make a reservation before going!

Nihon Kai Japanese Restaurant
No. 4-2, Jalan Telok Gadong,
Off Old Klang Road,
Kuala Lumpur.

Contact: 03 7982 3668
Business Hour:
12.00pm – 3.00pm
6.00pm – 10.00pm
(Open Daily)


View Larger Map

Other Reviews:
Babe in the City – KL – Review: Nihon Kai Japanese Restaurant
Nihon Kai Japanese Restaurant @ Old Klang Road | KAMPUNGBOYCITYGAL
Nihon Kai Restaurant @ Old Klang Road, KL | caffeinedoll
My story~: Nihon Kai Japanese Restaurant @ Old Klang Road

Futsal Injuries

I usually don’t get injuries from futsal but I do get a lot of injuries from rock climbing. You can read some entries on my rock climbing injuries here.

Usually my futsal injuries are quite mild, save for one or two incidents which were bad.

Feel down and scraped my knee few months ago..

Few days later…it got infected..uh

A couldn’t find any bandages at her house so she got hold of whatever that sticks to cover the wound. DJ Anatta said it is made of “love” -_-

Few weeks ago, my friends and I played futsal at our usual futsal place at Samba de Futsal. We were short of 2 players hence we asked a bunch of kids who were playing before us. The kids were probably around early 20s. They were more than happy to join us.

I must say that it was an enjoyable game as the kids were quite good. Feels young again to play with kids!

During the game, I had to challenge one of the kids for the ball. While doing so, I accidentally tripped on the kid’s feet and fell on my knees. As I was falling, my face scrapped on net.

The net is like this

When I stood up, everyone was staring at me. One person said, “Your face is bleeding!”. I wiped my face with my jersey and only saw a dot of blood. My first thought was, “NIA MA WHERE GOT??”

Few minutes later, I went to look at the mirror and I saw myself..


But it didn’t hurt at all. In fact, I was so tired that all I felt was exhaustion. After resting for a while, I went back to the pitch again!

When I got home, my Mum scolded me and said, “YOU THINK YOU’RE BECKHAM AH??!!!”. I’m already 30 years old and I still get scolded for this kind of thing -___-

So, on the same day, I went to see my neighbourhood doctor. He thought I got beaten up -_-

Notwithstanding the injury, my biggest worry wasn’t that my face was mutated.

Malaysian Top 10 Hottest Blogger No More.

I was actually more worried with my presentation to some bankers three days later. GG

My face 3 days later..

Fortunately, the presentation went well and the condition of my face was an ice breaker for many of my conversations. A blessing in disguise!

My Dad said that my bruises may stay for two months. Fortunately, it subsided in 5 days. I was back on the pitch a week there after!

DJ Anatta @ Boardwalk, KL Hilton

DJ Anatta spins at Boardwalk, KL Hilton every Thursday to Saturday from 8pm to 11pm. Boardwalk is a newly established poolside bar. However, it is still in its experimental stage and not officially open. Heard that it will be officially open in March.

Since its not officially open, there was no crowd.

A group of us decided to visit Dj Anatta at Boardwalk on a Saturday and also check out the place. As some of you may know, KL Hilton and Le Meridian share a pool. The pool is quite massive.

You can also get a great view of KL City. It’s even better if you get a seat at the VIP area.

Overall, it’s a nice place with awesome ambiance.

Of course, with hot DJ Anatta spinning, the place becomes perfect!

My only complaint of this place is the drinks. It is too expensive and they are not very generous with their drinks.

My RM30 Strongbow…not even full!

If they did reduce the price a little or be a little bit more generous with their drinks, this place would be perfect.

Can’t wait for it to be officially open!

Life Online Show 16: Naughty things

I was invited as a guest to speak at the Life Online Show podcast #16 (also known LOLShow a Malaysian podcast on social media and all things on the web) specifically on the amendment to the Printing Presses and Publications Act 1984 (PPPA). If you recall, the Government recently announced that it has plans to expand the ambit of the PPPA to cover online newspaper. This means anyone running an online news portal would need to register themselves under the PPPA failing which they will run foul of the PPPA. This would also mean that the life or death of the online news portal would depend on the Government. The online news portals’ impartiality may be affected by this.

Other than PPPA, the following topics were discussed with host John Lim, David Wang from theclickstarter.com, David Lian from Text100, journalist Niki Cheong:

1) Groupon coming into Malaysia by acquiring GroupsMore.com

2) Google establishing a bigger foothold in Malaysia with an office in KLCC.

3) The Malaysian Prime Minister has sent citizens Chinese New Year greetings, but how did he get their e-mail addresses in the first place?