4 Things About The Right To Privacy

by Joshua Wu Kai-Ming | Aug 2, 2023 | Misc

1. Recognised as a fundamental human right

In Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun Yean & Anor [2020] 4 MLJ 581, a case involving secret trusts, the Federal Court held the following:

“The concept of secret trust is consistent with the fundamental human right of privacy.”^[1] (Emphasis mine)

Rhodzariah Bujang JC (now FCJ) in Chong Chieng Jen v Mohd Irwan Hafiz bin Md Radzi & Anor [2009] 8 MLJ 364, had the occasion to say:

“A person’s privacy and the right to his property are very basic rights of a man and that to his property is even enshrined under art 13(1) of the Federal Constitution.”^[2] (Emphasis mine)

See also Datuk Seri Anwar bin Ibrahim v Utusan Melayu (M) Bhd & Anor [2013] 3 MLJ 534 (HC), at paragraph 78.

2. Recognised as being a constitutional right

Gopal Sri Ram FCJ in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 was of the view that:

“It is patently clear from a review of the authorities that ‘personal liberty’ in art 5(1) includes within its compass other rights such as the right to privacy (see Govind v State of Madhya Pradesh AIR 1975 SC 1378).”^[3] (Emphasis mine)

In Genting Malaysia Bhd v Pesuruhjaya Perlindungan Data Peribadi & Ors [2022] 11 MLJ 898, a decision which involved provisions of the Personal Data Protection Act 2010 and the Income Tax Act , the High Court recognised the right to privacy as a constitutionally and statutorily protected right:

“In the upshot, this court rejects the manner in which the respondents read the provisions of the PDPA and the ITA which would infringe upon the right to privacy safely guarded by the FC. There is an abdication of statutory duty entrusted by the Parliament on the part of the commissioner/deputy commissioner in protecting personal data of the applicant’s customers and in addressing the real issues in this case. Despite the clear and binding decision of the Court of Appeal in the Malaysian Bar case, the Revenue continues to assert unlawfully that they have the absolute power and unfettered discretion under the ITA to encroach the constitutionally and statutorily protected right to privacy by attempting to have access to the applicant’s customer database without any shred of evidence that any particular individual being the applicant’s customer has engaged in any under-declaration of income or any offence under the ITA.”^[4] (Emphasis mine)

3. A multidimensional concept

 In Toh See Wei v Teddric Jon Mohr & Anor [2017] 11 MLJ 67 (“Toh See Wei”), the learned High Court judge made the following observations about the right to privacy:

“[47]  The right to privacy is a multidimensional concept. In this modern society, right to privacy has been recognised both in the eye of law and in common parlance. The right to privacy refers to the specific right of an individual to control the collection, use and disclosure of personal information. Personal information could be in the form of personal interests, habits and activities, family records, education records, communication (including mail and telephone) records, medical records, to name a few. An individual could easily be harmed by the existence of computerised data about him/her which is inaccurate or misleading and which could be transferred for an unauthorised third party at high speed at very little cost. Innovative technologies make personal data easily accessible and communicable and there is inherent conflict between right to privacy and data protection.

[48]  In short, the right to privacy means the right to be let alone, the right of a person to be free from unwarranted publicity and the right to live without undue interference by the government or any private individual in matters with which the public is not concerned. The ‘right to privacy’ is recognised as basic human right in article 12 of the Universal Declaration of Human Rights 1948. Malaysia recognises the rights and liberties of the individual in the Federal Constitution as part of human rights protected by the supreme law of the land.”^[5] (Emphasis mine)

4. Could possibly give rise to the tort of invasion of privacy

In Lee Ewe Poh v Dr Lim Teik Man & Anor [2011] 1 MLJ 835, the High Court was of the view that invasion of privacy is an actionable tort:

“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 the Court of Appeal 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.”^[6] (Emphasis mine)

Stephen Chung JC (later JCA) in Sherinna Nur Elena bt Abdullah v Kent Well Edar Sdn Bhd [2014] 7 MLJ 298 (“Sherinna Nur Elena”) appeared to be open to the actionability of the tort of invasion of privacy:

“… the plaintiff is at liberty to sue the defendant for invasion of her privacy …”^[7]

However, on the facts of Sherinna Nur Elena, the learned Judicial Commissioner was of the view that to “to allow the action to proceed to trial will amount to an abuse of the process of the court.”^[8]

Notwithstanding the above, a number of High Court decisions took a contrary position (namely that invasion of privacy is not an actionable tort):

(a) Mohamad Izaham bin Mohamed Yatim v Norina bt Zainol Abidin & Ors [2017] 7 MLJ 772, per Vazeer Alam Mydin J (now JCA): :

“However, in the face of a direct and express affirmation by the Court of Appeal in Dr Bernadine Malini Martin v MPH Magazine Sdn Bhd & Ors and another appeal [2010] 5 MLJ 755; [2010] 7 CLJ 525 (CA) (a case later to Maslinda Ishak) that the law does not recognise invasion of privacy as an actionable tort, I am not prepared to make a definitive ruling to the contrary. In as much as I may agree that this area of the law is ripe for reform, I am bound by the doctrine of stare decisis to apply the law as it stands, and the law as it stands now is that, in the circumstance of the pleaded facts, no such actionable tort for invasion of privacy can arise.”^[9] (Emphasis mine)

(b) John Dadit v Bong Meng Chiat & Ors [2015] MLJU 1961, per Yew Jen Kie J:

“I am of the view that the Plaintiff’s cause of action in tort of privacy must fail for the reason that the Common Law in England does not recognize any right to privacy nor tort of privacy. Also, there is no written law in force in Malaysia for such a right to privacy nor tort of invasion of privacy.”^[10] (Emphasis mine)

(c) Ultra Dimension Sdn Bhd v Kook Wei Kuan [2001] MLJU 751 (“Ultra Dimension”), per Faiza Thamby Chik J:

“Based on the above authorities, I am of the view that it is clear that English Common Law does not recognise privacy rights and it therefore follows that invasion of privacy rights does not give rise to cause of action. As English Common Law is applicable in Malaysia pursuant to Section 3 of the Civil Law Act 1956, privacy rights which is not recognised under English Law is accordingly not recognised under Malaysian law. Thus, the Respondent does not have the right to institute an action against the Appellant for invasion of privacy rights. It is noteworthy that invasion of privacy rights via taking and publication of photographs (as in the facts of the instant appeal) is also not recognised in countries such as Australia and the United States of America. Page 183 in the book of “Torts in the Nineties — Nicholas J Mullany” touched on privacy rights in Australia and the United States …”^[11] (Emphasis mine)

(d) Lew Cher Phow @ Lew Cha Paw & Ors v Pua Yong Yong Anor Pua Keng Siang [2009] MLJU 1331, a decision on an application for permanent injunction,^[12] Kamardin bin Hashim JC (later JCA) relied upon the High Court’s decision in Ultra Dimension^[13] to support his decision to dismiss the application.

At the present moment, it is unclear whether the tort of invasion of privacy is an actionable tort within Malaysian jurisprudence.

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