BFM Radio Interview: Privacy Laws in Malaysia

Privacy laws is one of my specialized areas. It’s a relatively new area in Malaysia. It was not until recently the Federal Court held that the Malaysian Constitution recognises our right to privacy and that invasion of privacy rights is actionable in Malaysia. Few years ago, invasion of privacy rights is not actionable in Malaysia.

It is highly developed in the United Kingdom. So developed that there are law firms well known for their privacy law practice. For example, Schillings, a law firm in London, is well known to have develop privacy laws in the United Kingdom and they have well known celebrity clients such as Naomi Campbell, JK Rowling, Ryan Giggs, Tiger Woods, Keira Knightley and Cristiano Ronaldo. I hope we could develop something like this in Malaysia.

Anyway, thanks to LoyarBurok and Edmund Bon, I was invited to speak at BFM Radio on privacy laws in Malaysia. How this opportunity came about was also through two (2) articles I wrote for LoyarBurok regarding the right to privacy in Malaysia. One of the articles was later republished by the Malaysia Insider. Amazing how articles can help a lawyer’s legal practice.

Without further ado, you can listen to the podcast below.

Gosh, it’s so weird to hear myself on radio! It’s a pity we don’t have much time. There are so many other things we could cover! Hope there will be a 2nd series soon!

What happened to Teoh Beng Hock’s Right to Privacy?

I got this article published on LoyarBurok!


This is perhaps one of the many issues raised in the Teoh Beng Hock Royal Commission Report (“TBHRCI”) that did not receive wide attention. I have read a few commentaries on TBHRCI but I did not see anyone raising the issue of privacy in the interrogation of Mr Teoh Beng Hock (“TBH”). But as an advocate of privacy rights in Malaysia, I thought it would be pertinent for me to raise this.

When I first read the TBHRCI, the first thing that caught my eyes is that the investigators of the Malaysian Anti-Corruption Agency (“MACC”) had forced TBH to reveal his password to his personal email.

I was shocked. Isn’t TBH merely a “witness”? How can a witness be forced to give his password to investigators? What happened to his right to privacy? (On the right to privacy in Malaysia, please read my earlier article here.)

The background to this invasion can be seen in paragraph 42 of the TBHRCI where the Commission stated the following:-

[42] Another important aspect of this “interview” is that both these officers extracted from TBH the password to his private email account, a matter which vexed TBH very much, causing him great concern and distress. We will discuss this later in this report.

Later at paragraph 48 of the TBHRCI,

[48] TBH, according to Lee, complained that MACC officers had taken away his mobile phone and laptop. He also lamented that he should not have disclosed to the officers his password to his email account….

We all know that password to our personal email is sacred. Our personal email may contain all sorts of private information such as banking, financial or health information, private conversations and even intimate photographs. It may not only contain one’s private information but also private information of others. Allowing another person to have our password is akin to giving that person keys to our private life. What people do in the private lives is none of our business.

Further, many internet users use the same password for various accounts. One password can be used to access many account to avoid memorizing many passwords.

However, request for password to private email is not new. Recently, Malaysian Blogger Hanief complained that the Malaysian Communication and Multimedia Commission compelled him to reveal the passwords to his email, Facebook account and Blogger account when he was investigated for publishing a defamatory blog posting. In his own defence, Hanief stated that the defamatory article is available on his blog and there is no reason for him to reveal his passwords.

In view of the TBHRCI, such practice must be carefully exercised. In paragraph 155, the Commission criticized the interrogators’ action:-

[155] Another aspect of this interrogation of concern was the ability of Arman and Ashraf to extract from TBH his password to his private email account. To many of us, this may be equivalent to disclosing our pin number of our ATM card. At least in the case of an ATM card, the extractor may be allowed to withdraw a limited amount of our money at any one time before such unauthorised access is reported. But in the case of an email account, all our personal information and data would be exposed immediately and permanently. This is a gross violation of a person’s right. TBH would have been very disturbed over this and his disappointment and regret in divulging his password to Arman and Ashraf was further mirrored in his conversation with Lee.

[156] We are of the view that this regret and concern of TBH over these matters remained festering with him. An indication of this could be seen from his behavior when his statement was being recorded by Nadzri. This was further reflected in his being silent and being deep in thought when he met Tan Boon Wah near the toilet. Instead of being excited and surprised to see a fellow in a similar distressful situation, he maintained a distance and was virtually silent.

In fact, the TBHRCI has attributed TBH’s “suicide” to this invasion of privacy. In paragraph 220, the Commission stated that:

[220] Another factor which had serious implications on TBH was the surrendering of his laptop to the officers of the MACC, and worse than this was being forced to divulge to the MACC officers the password to his email account. As this held the key to many things private, TBH must have felt that his privacy was violated under duress, and the secrets to his life were in the open. This was a gross violation of TBH’s person right, which would have compounded his anxiety and worry.

The TBHRCI provided recommendation for the MACC to implement due to TBH’s case. Unfortunate, there is no specific recommendation by the Commission on such practice. The best we could rely on is the recommendation for powers of search.

However, search on a premise is very different from a search on a person’s private email and also electronic data. A search on a house may not reveal as many information as a search on a person’s personal computer. It is opening a whole new can of worms. In the Canadian case of R v Cole, 2011 ONCA 218, it was held that “searching a computer that is used for personal purposes is potentially among the most invasive of searches”.

There are many things that one would not want the world to see and it includes details belonging to others. For example, in Edison Chen’s case, the intimate photographs of his partners were spread around the internet after he had his laptop sent for service. These photographs now can be considered to have entered public domain and no amount of work can remove them from the public domain.

In view of the aforesaid, special attention must be given to search on electronic data. A party granting such search must carefully weight the individual reasonable right to privacy and public interest. If there are other means of obtaining information, such search should not be conducted.

If the owner specifically requests that certain portion of the computer be restricted, such request must be considered.

Also, whether there can be search to electronic data should be left to the Courts. In R v. IRC, Ex P Rossminster [1980] AC 952, Lord Wilberforce stated that:-

The courts have the duty to supervise, I would say critically, even jealously, the legality of any purported exercise of these powers. They are the guardians of the citizens’ right to privacy. But they must do this in the context of the times, ie, of increasing Parliamentary intervention, and of the modern power of judicial review.

Perhaps an exception can be given if is a real and present belief that failure to act will result in the destruction or loss.

Guidelines and standard operating procedures on electronic data search should be issued. Officers must be educated on the right to privacy of all Malaysians. No forceful entry should be made by them. Information wrongly obtained through this practice must be deemed inadmissible in Court.

On the other hand, private sectors, who hold our personal information, should play a role in protecting all Malaysian’s privacy. For example, internet or web hosting service providers should restrict the access of personal information of customers by any Government authorities or other individuals.

I must state that nothing in this article prohibits the access of electronic data. There are circumstances that should justify the access to one’s electronic data. As an extreme example, the police should be allowed to access private emails of a kidnapper, who they reasonably believe based on credible information, which has information of the whereabouts of his victim.

TBH’s case reveals the sad stage of our right to privacy. Every Malaysian, including those in power or given power, should be concerned with how their own privacy is being treated.

I am sure TBH would still be distressed if the MACC interrogators still have access to his private email – if only he is still alive today

Quick, throw your CDs away! There’s a roadblock! – Part II

Remember my post on “Quick, throw your CDs away! There’s a roadblock!“? It was an article about the Government implementing a law to nab people with pirated DVDs.

Latest news is that the Government decided to scrap off this law. I wonder if the article I wrote had helped in scrapping the proposed law! Hehe! *perasan*

Maybe it’s because election is coming…

Pirated DVDs Buyers Let off

KUALA LUMPUR: The proposal to penalise those who buy pirated DVDs, VCDs and CDs will not be seeing the light of day after all.

Domestic Trade, Cooperatives and Consumerism Minister Datuk Seri Ismail Sabri Yaakob told the New Sunday Times that the proposal, which was mooted by the industry, had been shot down because the ‘public feels the move is too harsh’.

“The people think the proposal to amend the Copyright Act to this effect is too punitive. They fear the enforcement of the amendment.

“They are concerned about misuse of power during enforcement.

“As far as I am concerned, that won’t happen, but the public is afraid that the police will stop their cars or go into their homes to look for pirated DVDs and VCDs.

“Therefore, the proposal to criminalise the purchase of pirated DVDs, VCDs and CDs will not go through,” he said.

Expressing his disappointment, Malaysian Artistes’ Association president Datuk Freddie Fernandez said, however, that “we are in an era where CD piracy will soon be a thing of the past.”

“People are not buying pirated CDs any more as they can get their music free from the Internet. For us, Internet piracy is the bigger problem.

“We feel more effort should be focused on this area. Websites which offer illegal downloading should be shut down and people who file-share should be subject to prosecution.

“I think for CD piracy, the fines are very high for suppliers and this
is a good deterrent, but where the Internet is concerned, we need more enforcement.”

Recording Industry Association of Malaysia (RIM) chairman Norman Abdul Halim, who is also president and chief executive officer of KRU Studios, said while penalising copyright infringers is “ideal”, it is “a bit difficult to implement”.

“To be honest, the more serious threat is from the Internet. We hope the amendment to the Copyright Act will address Internet piracy — from Internet service provider liability to the ‘three strikes’ rule — where customers receive three warnings before their Internet connection is cut off.”

It had been initially reported that buyers of pirated DVDs and VCDs would be fined five times the price of the genuine product once the Copyright Act was amended.

This was greeted by public outrage with many arguing that it was the sellers who should be penalised and that it was unfair to take legal action against buyers when original DVDs were too expensive.

One of the drafters of the Consumer Protection Act 1999, Datuk Dr Sothi Rachagan, who is currently vice-president (academic affairs) of Nilai University College, said intellectual property (IP) should be protected, but the manner in which it is protected was also very important.

He said there were two central issues — the amount of protection the holder of IP rights is entitled to, and the manner in which protection is to be effected.

“If the amendments to the Copyright Act had been enacted, then we would, for the first time, begin penalising purchasers of pirated DVDs, VCDs and CDs.

“This is essentially criminalising consumer conduct which has hitherto not been criminal.

“Peddling pirated DVDs is always an offence, but the act of purchasing a single DVD for personal use, even if frowned upon, was never an offence.”

The law currently allows a person to be arrested if he has three copies or more of a pirated DVD or VCD of the same title, the presumption being that such a person is a peddler.

“Consumers would obviously ask why, when we have serious problems with counterfeit handbags, T-shirts and shoes and other fake products, is it only an offence to buy fake DVDs, VCDs or CDs?

“When you amend the law to apply to DVDs, VCDs and CDs, then shouldn’t it also apply to other fake products?

“Are we going to extend the law to these areas? If not, why not? Why should purchasers of these products be treated differently?”

There are also implementation issues to be considered.

“If I buy a pirated DVD now when it is not illegal, will it be illegal when the law comes into effect? Will the law have retrospective effect?

“If it does, that will be repugnant to any sense of justice. It is also against Article 7 of the Federal Constitution which says no person shall be punished for an act or omission which was not punishable by law when it was done or made.

“But if it does not have retrospective effect, then it will be necessary to establish that the purchase of the DVD or VCD was later than the date the amendment was gazetted,” said Sothi.

Then comes the question of enforcement, he said.

“Are they going to search houses and cars for pirated DVDs, VCDs and CDs? Who will be given the authority to search and take action? Is it going to be ministry enforcement officers, Rela, or will the police also be involved? Would a warrant be needed?”

Quick, throw your CDs away! There’s a roadblock!

I recently contributed an article on LoyarBurok, a prominent Malaysian BLawg, regarding the powers of the police and the enforcement division of the Domestic Trade and Consumer Affairs Ministry’s (now the Ministry of Domestic Trade, Co-operatives And Consumerism. Some of you may have received the following emails below:

To all those CDs lover pls beware!

Please do not keep any pirated or burned CDs, DVDs, or VCDs in your car.

Police and Domestic Trade & Consumer Affairs Ministry’s enforcement division in Malaysia have started the operation to search and fine anyone who keep pirated disc inside their car especially through road block at all main road and expressways.

If any pirated or burned disc found inside your car will be charged RM400 per disc. Example 30 discs found means the fine will be RM12,000.

This is real. Another friend of mine from Seagate, today during lunch time, 5 CD x RM400 = RM2,000

One of the Plexus colleague brother-in-law caught by Police due to pirated CD in the car on the way to town for lunch with his friend in the afternoon. One CD fined RM400.

Please disseminate this to all your friends who are driving in Malaysia

Fehmes lawyer Edmund Bon asked me to address this issue and I subsequently wrote a short article on it. It is published at this page.

For the past few months, an email has been circulating alleging that police and the enforcement division of the Domestic Trade and Consumer Affairs Ministry’s (now the Ministry of Domestic Trade, Co-operatives And Consumerism) have started operations to search and fine anyone who keeps pirated discs inside their cars. The email alleges that these operations were carried out through roadblocks at main roads and expressways, and that persons caught in possession of pirated discs were fined RM400 per disc.

In fact, these stories have been circulating for some time now. A report in the Sun newspaper in April 2009 stated that the police set out roadblocks to nab anyone with pirated discs. However, the same report stated that the Ministry denied having such roadblocks being set up.

Whether or not such roadblocks have been set up, it leaves us with the question: Do the police or the Ministry have the power to search our vehicles for pirated discs?

Section 24 of the Police Act 1967 allows any police officer to stop and search without warrant any vehicle which he has reasonable grounds for suspecting is being used in the commission of any offence against any law in force. The Ministry has also authority to enter and search a vehicle without warrant provided that he has reasonable grounds for believing that delay in obtaining a search warrant would lead to the destruction of evidence.

Under section 41 of the Copyright Act 1987, it is an offence to possess, other than for private and domestic use, any infringing goods. Any person who has in his possession, custody or control three or more infringing copies of a work or recording in the same form is presumed to be in possession of such copies otherwise than for private or domestic use. This basically means that possession of a pirated disc for private and domestic use is allowed provided that the pirated disc do not exceed three or more copies of the same form.

The offence would attract a fine not less than RM2,000 and not more than RM20,000 for each infringing copy or imprisonment for a term not exceeding five years or to both.

Can the police or the Ministry stop and search your vehicle?

In short, for now, if the police or Ministry have reasonable grounds to think that you are distributing pirated goods, (e.g. if you’re suspected to be a pirated VCD/DVD seller), they can stop and search your vehicle. Otherwise, they have no authority to stop and search your vehicle for pirated discs.

This situation may soon change.

The Government recently announced plans to amend the Copyright Act 1987 to make it an offence to keep pirated goods, similar to the offence of possessing stolen goods. Although the Government has not announced the details of the amendment, such news is worrying. This basically means that anyone in possession of pirated goods is committing an offence. Hence, any police, with reasonable grounds that there are pirated goods in a vehicle, may stop and search the vehicle.

What if the driver had purchased genuine songs from the internet and had it copied into a CD? The driver would have to prove and explain that he had genuinely purchased the song.

If I had downloaded software, music or movies into my computer from the Internet, does the police or Ministry has the authority to enter my house and search my computer? Based on the proposed amendment, the police or Ministry has the authority to do so.

Guidelines to allow the authorities to stop and search a vehicle for pirated goods should be clearly spelled out and made available to the public. The public should be given the right to use or copy copyrighted materials for their private use. Certain levies or exemptions should be given to the public if they are in possession of pirated goods unintentionally.

An outright ban of unauthorised possession copyrighted materials will create fear and chaos to the country and society.

On another note, United Kingdom will be amending their copyright laws to make them fit for the internet age. According to UK Prime Minister David Cameron, the law could be relaxed to allow greater use of copyright material without the owner’s permission. (Read more here.

How unfortunate, while UK is moving forward with the Internet age, Malaysian IP laws are going backwards.