The NST Leader on March 1 (Make it a punishable offence) proves two things — one, a large section of the general public is still ignorant of the law of privacy, and two, even if they know of the existence of the law, the penalty for invasion of privacy is so inadequate that they do not fear breaking the law.
In Sivarasa vs Badan Peguam Malaysia & Anor (2010), the Federal Court stated that the right to personal liberty, as enshrined in Article 5(1) of the Federal Constitution, includes the right to privacy. The right of privacy has three dimensions — the right to be left alone; the right to exercise control over one’s personal information; and, the right to have a set of conditions necessary to protect one’s individual dignity and autonomy.
To look at the law from a different perspective, there are three kinds of privacy — physical privacy (freedom from unlawful search, use of our DNA); information privacy (right to protect personal information such as our age, address, sexual preference); and, freedom from excessive surveillance.
Infringement of a person’s privacy can take many forms. It includes an intrusion upon one’s solitude, grief or seclusion. Such intrusion occurs when someone intentionally intrudes (physically, electronically, or otherwise) upon the private space or the private affairs or concerns of another person.
In the notorious Hemy Hamisa Abu Hassan Saari case, a short video clip surfaced in November 2005 of a nude woman doing the ketuk ketampi (nude squats) in a police lock-up. The illegal recording was taken shortly after Hemy and five others were arrested for drug offences in June 2005. The video clip was widely circulated and this led to the setting-up of a Royal Commission to look into procedures for conducting body searches in police lock-ups. Hemy filed a civil suit against the Malaysian government, but the case was ultimately settled out of court.
Actress Nasha Aziz was a victim of invasion of privacy when a hidden camera was installed in her condominium unit in Jalan Ampang. The culprit, a youth named Ahmad Bakhtiar Abdul Kayoom, was convicted in 2002 and sentenced to six months’ jail for trespassing and another six months for invading the privacy of the actress. He appealed, but the appeal was rejected and his conviction and prison term was upheld by the Court of Appeal in October 2008.
In the distressful case of 8-year-old Nurin Jazlin (reported missing and her body subsequently found in a bag), post-mortem photographs of her body were circulated on the Internet. Two policemen were found responsible for their circulation. The negligence suit by her parents was later settled out of court.
In 2006, gruesome photos of a fatal car crash involving a 18-year-old girl, Nicole Catsouras, were posted online. Distressed by this insensitive invasion of grief and privacy, the parents sued. The photos had been leaked online by two officers from the California Highway Patrol (CHP). The family’s action against CHP was for “negligence, privacy invasion and infliction of emotional harm” but the case was dismissed because no law had been violated and because privacy rights are not applicable to the dead. The family appealed. In 2010, the decision was reversed — the surviving family members have a right to sue for invasion of privacy in such cases.
According to the Orange County’s Daily Mail report on Feb 1, 2012, the CHP finally settled with the family for US$2.37 million (RM9.65 million). It took Nicole’s family five years to get justice.
The latest incidents as stated in the NST Leader are the latest proof that awareness of privacy rights in Malaysia is still low and the problem is aggravated by the absence of modern legislation penalising invasion of privacy as a whole, not just the protection of private data.
As the law stands today, unlike other jurisdictions, Malaysia has no specific law such as a Privacy Act to protect personal privacy. The Personal Data Protection Act 2010 (which came into effect in 2013) only protects the personal data of a data subject. The law of privacy in Malaysia is, therefore, very much grounded in common law.
Infringement of privacy law brings about two consequences — a civil suit by the affected party and a criminal prosecution by the Public Prosecutor. The former is grounded on common law, whilst the latter is grounded on statutes like the Penal Code and the Multimedia and Communications Act 1998. The obsolete Minor Offences Act (which carries a maximum fine of RM100) should be scrapped and replaced with something meaningful in this modern communications age.
There is an urgent need for Parliament to pass a new and comprehensive Privacy Act, providing for deterrent penalties for the invasion of privacy such as those in Nurin’s and the other cases that were settled out of court.
The writer formerly served the Attorney-General’s Chambers before he left for private practice, the corporate sector and academia.