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Malaysia does not have specific laws to protect its citizens from invasions of privacy.

The applicable laws, such as sections 2921 and 5092 of the Penal Code, and section 2333 of the Communications and Multimedia Act 1998, are insufficient to comprehensively address all cases of invasions of privacy.

In addition, the Federal Constitution unfortunately does not expressly provide for the right to privacy.  This does not meet with the international human rights standard, which is set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights 1966.  Article 17 of the Covenant reads as follows:

1.  No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2.  Everyone has the right to the protection of the law against such interference or attacks.

The English cases, which are highly persuasive in the Malaysian courts, suggest that the common law action for breach of confidence may be used to protect an individual in the event that photographs taken of that individual are circulated without the individual's consent.  However, the English judges have been reluctant to classify private photographs as confidential information per se.  The law as it stands is equivocal and inadequate to provide essential legal protection for privacy rights.

We live in an era where image technology is an intricate part of our daily lives, and no longer a mere luxury.  Due to advances in communication technology, it is incumbent on the Government to protect our privacy.  A Data Protection Act is essential to achieve this.  In addition, a Privacy Act should be given serious consideration.  The latter Act should, inter alia, restrict the wanton distribution of a person’s photographs.  More discourse on this is surely required. 

Dated this 13th day of March 2009
Human Rights Committee
Bar Council