Mulling the need for privacy law

KUALA LUMPUR, 27 Feb 2009: Legal experts and members of the public concur that there is a serious lack of respect for the individual’s right to privacy in Malaysia, but not all agree that Malaysia should enact a privacy law.

“There have been longstanding calls for the enactment of a Data Protection Act in Malaysia,” said Sonya Liew, a member of the Bar Council Human Rights Committee.  

Sonya Liew

She stressed, however, that the Act would only apply to data collectors and institutions.

She said an intruder taking intimate pictures of an individual’s private activities at home would technically not be considered a “data collector” under such an Act.

“Thus, we need a privacy law that is separate from the proposed Data Protection Act,” added the Bar Council Human Rights Committee deputy chairperson Andrew Khoo.

Liew and Khoo were among the four panelists at a public forum today, titled “Privacy: Does it exist in Malaysia? Is it time to legislate?”.

The forum was organised by the Bar Council in light of the recent circulation and media coverage of intimate photographs of Parti Keadilan Rakyat (PKR) assemblyperson for Bukit Lanjan, Elizabeth Wong.

Panel speaker, Fui K Soong, head of the Institute of Strategic Analysis and Policy Research, an MCA think tank, said there were many issues to consider on whether Malaysia needed a privacy law.

“In Malaysia, there is a dividing line between personal morality and the right to privacy,” she said.

Fui K Soong

“We are a society that condones moral policing, even in public spaces,” she said.

Khoo agreed that this was a question Malaysians needed to ask.

“Do we have public policies that regulate personal morality and justify the invasion of privacy?” he asked.

Another speaker, journalist U-En Ng, said that in the case of the media, the test would be if the invasion of privacy was in the public’s interest.

“A journalist could have evidence that a public servant took a bribe in the privacy of his or her own home,” he said.

Khoo shared the same view. “The privacy-of-home argument cannot be a principle, otherwise there would be no grounds to investigate the VK Lingam fiasco,” he said.

Both Khoo and Ng concurred that the problem was when the right to privacy was invaded on the grounds of personal morality.

“In the UK, exceptions to the right to privacy based on public interest have been established by the courts,” Khoo said.

He explained that one of the exceptions the courts made was that privacy could be invaded to expose a crime or a serious misdemeanour.

Andrew Khoo

However, even this provision may be problematic. “Rightly or wrongly, oral and anal sex are crimes under Malaysian law, and this could be grounds for public interest in exposing an individual’s private life,” he said.

Liew also noted that any attempt to enact a general law on privacy in Malaysia would likely include huge exemptions for Muslims where it conflicted with syariah legislation.

Lawyer and PKR supreme council member Latheefa Koya, who attended the forum, said, “Laws on privacy will be difficult to enact unless we address the issue of sexual morality first.”

She said the criminalisation of oral sex in Section 377 of the Penal Code and several restrictive provisions in the Syariah Criminal Offences Act were “laughable”.

“What does it matter what you do in your house?” she asked.

The forum was attended by lawyers, activists, journalists and other members of the public.