The circulation of pictures of YB Elizabeth Wong, a Selangor state assemblywoman, taken in the privacy of her home, has once again provoked heated debates and discussions on the right to privacy, i.e. whether such a right exists in Malaysia.
Recognising the importance of this legal issue, the Bar Council swiftly organised a public forum entitled “Privacy: Does it exist in Malaysia? Is it time to legislate?” on Friday, 27 February 2009. The esteemed panellists consisted of Fui K Soong, CEO of INSAP (MCA’s Institute of Strategic Analysis and Policy Research), U–En Ng, former editor of Malay Mail Online, and Sonya Liew Yee Aun and Andrew Khoo Chin Hock, both members of the Bar Council’s Human Rights Committee.
H R Dipendra, the forum moderator, set the tone for the forum by asking on the onset, thought–provoking questions such as: To what extent should such privacy protection be given? Is there a need to distinguish between a private individual as opposed to a public figure? Conversely, should exceptions to such protection apply to persons holding public office? He was of the view that all of these should be balanced against an individual’s right to freedom of expression.
Recognising the importance of this legal issue, the Bar Council swiftly organised a public forum entitled “Privacy: Does it exist in Malaysia? Is it time to legislate?” on Friday, 27 February 2009. The esteemed panellists consisted of Fui K Soong, CEO of INSAP (MCA’s Institute of Strategic Analysis and Policy Research), U–En Ng, former editor of Malay Mail Online, and Sonya Liew Yee Aun and Andrew Khoo Chin Hock, both members of the Bar Council’s Human Rights Committee.
H R Dipendra, the forum moderator, set the tone for the forum by asking on the onset, thought–provoking questions such as: To what extent should such privacy protection be given? Is there a need to distinguish between a private individual as opposed to a public figure? Conversely, should exceptions to such protection apply to persons holding public office? He was of the view that all of these should be balanced against an individual’s right to freedom of expression.
In her opening remarks, Malaysian Bar President Dato’ Ambiga Sreenevasan expressed concern that the present laws are not adequate enough to address the issue of privacy. She opined that we should take personal responsibility to stop the spread of malicious materials by deleting such materials in the event that we receive them. In addition, any media that sensationalise such news should be avoided.
The first two panellists, Fui K Soong and U–En Ng, touched on the morality aspects of the argument for the right to privacy. They were of the view that the differing standards of morality set by individuals and society pose challenges and difficulties to come up with the right legislation.
Sonya Liew very deftly summarised the different categories of privacy and briefly expounded on the existing privacy protections in Malaysia, which are only in limited circumstances such as in the Penal Code, Communications and Multimedia Act 1998 and the law of confidence. What we do not have, however, is a specific piece of legislation that expressly grants us the right to privacy.
Sonya asserted that Malaysia, having adopted the Universal Declaration of Human Rights, should go a step further by amending the Constitution to guarantee our right to privacy. Given the many digital surveillance and image–capturing gadgets available in the market, it will only be a matter of time before the use of such devices leads to abuse. As such, it is imperative that Malaysia should have a Privacy Act.
In this regard, Sonya added that the Parliament must take proactive steps to legislate such an act instead of leaving the courts to deal with the lacunas. The first immediate step that needs to be taken is to speed up the progress of the Data Protection Bill. This, however, should be compared with the proposed Privacy Act as a Data Protection Act would only cover data collectors such as banks, government agencies and any other bodies who collect personal data. Something more comprehensive is clearly required to ensure that our privacy is protected.
Andrew Khoo, the final speaker, elaborated on Sonya’s point on the need to enact a Privacy Act in Malaysia. He was of the view that we should take a step back and review the issues dispassionately: the different categories of privacy protection, parameters and exceptions. It appears that the matter needs to be further studied and explored before one can say with certainty the kind of Privacy Act Malaysians need.
During the question–and–answer session, Sonya noted that another challenge lies perhaps in Malaysia’s multi–cultural and religious make–up whereby there are apparently different standards of morality being applied to Muslims and non–Muslims. There are potential conflicts between the Syariah law and any Privacy Act that clearly have to be addressed.
In reply to a question on whether there is a need to punish journalists or media who act unethically in publishing such sensationalised news in order to curb sleazy reporting, U–En was adamant that there is no such need as it will affect media independence. He added that there must be a minimum standard which the media needs to adhere to and this must come by way of self–regulation.
A women’s rights activist from the floor also pointed out that any privacy legislation must not exacerbate the problem of domestic violence and must be in tandem with women’s rights at large. For instance, there needs to be a review on laws that prohibit consensual oral sex and anal sex, which by and large are not imposed on married couples. There cannot be a case of selective prosecution.
It was concluded in the forum that the need to legislate a Privacy Act and its problem appear to lie in the issue of morality, the shifting standards of morality and the public’s expectations of persons holding public office.
All speakers, however, were in agreement that there needs to be a Privacy Act to deal with common personal issues relating to e–mails, hand phones and CCTVs, among others.