Published on 21 October 2022
“New technology has…….placed all of us in an electronic fishbowl in which our habits, tastes and activities are watched and recorded.” per Simson Garfinkel (Ojeda). Below are two scenarios which we face in our daily lives in this digital age:
A is a photographer who likes to photograph people going on with their daily lives. He took a photo of B walking in the streets and hung it outside his photography studio to advertise his business.
C and his group of friends decided to take a group photo. D, who was also in the photo, thought it was embarrassing. To D’s dismay, C posted the photo on his social media account for everyone to see without telling his group of friends.
Can B and D take legal action against A and C?
Right to privacy in Malaysia Before we dive into the claims that could be brought, it should be noted that the right to privacy has not been expressly mentioned in the Malaysian Federal Constitution. However, Gopal Sri Ram FCJ (as he then was) had proclaimed that the right to privacy had been included in the right to personal liberty under Article 5(1) of the Federal Constitution. The right to privacy was also elaborated in the case of Toh See Wei v Teddric Jon Mohr & Anor  11 MLJ, whereby it was held to be (i) right to be let alone; (ii) right of a person to be free from unwarranted publicity; and (iii) right to live without undue interference by the government or any private individual in matters with which the public is not concerned.
It is worth noting that multiple cases involving the issue of invasion of privacy are restricted to matters regarding private morality and modesty, particularly for women. An example would be the case of Maslinda Bt Ishak v Mohd Tahir Bin Isman & Ors  6 MLJ 826 where the
appellant had requested to go to the toilet but was scolded and told to urinate in the truck by the officers. When she did, the defendant pulled down the shawl that was shielding her and took multiple photos of her urinating. The appellant was granted damages due to the humiliation, trauma, and mental anguish she went through.
This case of Maslinda Bt Ishak v Mohd Tahir Bin Isman & Ors  6 MLJ 826 shows that there are limited circumstances where claims of infringement of privacy could be brought. In the scenarios given, A and C might not be able to bring a claim at all.
Requirements to fulfil for a cause of action to arise
The court in Ultra Dimension Sdn Bhd v Kook Wei Kuan  5 CLJ 285 has held that for a cause of action to arise, the photographs must be either:
1) highly offensive in nature; or
2) shows a person in an embarrassing position or pose
In Ultra Dimension Sdn Bhd v Kook Wei Kuan  5 CLJ 285, a group of kindergarteners and the respondent were photographed. Their photograph was then used in an advertisement which was published in ‘The Star’ and ‘Sin Chew Jit Poh’ newspapers. The court held that a photograph of a cheerful bunch of kindergarteners outside the kindergarten would not give rise to a cause of action.
The later case of Sherinna Nur Elena bt Abdullah v Kent Well Edar Sdn Bhd  7 MLJ 298 has followed the decision in Ultra Dimension Sdn Bhd v Kook Wei Kuan  5 CLJ 285. Here, the defendant utilised the plaintiff’s photos on the packaging of their products and advertisement board. The Court of Appeal dismissed the appeal with costs. This decision was reached as the photographs were taken when she participated in a beauty contest in public. Besides, the photographs were not offensive, and she had not argued about being embarrassed, mocked, or scandalised due to the photograph.
However, in the case of Lee Ewe Poh v Dr Lim Teik Man & Anor  4 CLJ 397, the first defendant had taken a photo of the anus of the plaintiff that she claimed had violated her privacy and/or dignity. She had not been notified that such photographs would be taken, nor had she consented to it. The defendant argued that this act was accepted in medical practice and for the defendant’s records to ease explanation to the plaintiff after the completion of the procedure. Nonetheless, the courts had ordered the defendant to pay compensation to the plaintiff. The principles on infringement of privacy rights are:
1) the information must have the necessary quality of confidence about it;
2) the information must have been imparted in circumstances importing an obligation of confidence; and
3) there must be an unauthorised use or disclosure of that information.
The scenarios given are somehow similar to the cases of Ultra Dimension Sdn Bhd v Kook Wei Kuan  5 CLJ 285 and Sherinna Nur Elena bt Abdullah v Kent Well Edar Sdn Bhd  7 MLJ 298 where the photos were not highly offensive in nature nor were the complainants in a very embarrassing position or pose.
Therefore, the photos would be considered normal compared to the ones in Lee Ewe Poh v Dr Lim Teik Man & Anor  4 CLJ 397 and Maslinda Bt Ishak v Mohd Tahir Bin Isman & Ors  6 MLJ 826. Thus, applying the cases above to our scenarios, it is unlikely that B and D could take any legal action against A and C.
In conclusion, it is unlikely that any legal actions could be taken in the scenarios described above. There appears to be a high standard of proof to establish a breach of the right to privacy, in view of the elements to be proven in order to establish the same. Thus, it is concluded that the right to privacy is not well protected in Malaysia. It is high time the Parliament comes up with legislation to protect an individual’s right to privacy, especially in this digital age whereby almost everyone on the street has a smartphone with photography capability and has access to the internet.
©2022. HMS Law. All Rights Reserved.