A KEDAH elder (whom I have known for the last two decades) recently asked me about my views on news reports that the Johor palace is being “spied on” by several unnamed parties. I had replied that what I knew is what had been reported by the local media, and nothing more.
According to media reports, Tunku Ismail Sultan Ibrahim, the Tunku Mahkota Johor (TMJ) had alleged that he and his father, the Sultan of Johor “are being monitored” by several parties.
“It is not nice when officials come to me saying that my father, the Sultan of Johor and I are being monitored. And, that there are cybertroopers planted, waiting in case there is something that does not go down well with certain higher-ups,” Tunku Ismail had said.
He added: “I have nothing against the government. Johor has always had the policy of supporting the ruling government. That said, we will give our support when the right things are done, yet, we will not be silent when wrongs are committed.”
A local daily stated that this is the second time Tunku Ismail had claimed that the royal family had been “monitored by the government”. In May 2016, he claimed that his phone was being tapped and that his movements were being monitored by the Special Branch.
I told my good friend that I have no way of knowing whether these allegations were substantiated or not. Whilst we wait for the outcome of the investigation, what we should be aware is that there is a privacy law in this country that is binding on (and protecting) everyone — private citizens, the palace and the government.
In Sivarasa vs Badan Peguam Malaysia & Anor (2010), Federal Court Judge Sri Ram had said that the right to personal liberty (enshrined in Article 5(1) of the Federal Constitution), included the right to privacy.
The right of privacy has three dimensions — the right to be left alone; the right to exercise control over one’s personal information; and, the right to a set of conditions necessary to protect our individual dignity and autonomy.
To look at the law from a different perspective, there are three kinds of privacy — physical privacy (freedom from unlawful search, use of our DNA); information privacy (right to protect personal information such as our age, address, sexual preference); and, freedom from excessive surveillance.
Infringements on a person’s privacy can take many forms. It includes an intrusion upon one’s solitude or seclusion. Such intrusion occurs when someone intentionally intrudes (physically, electronically, or otherwise) upon the private space, solitude, or seclusion of a person, or the private affairs or concerns of another person.
Hacking a person’s computer is an example of intrusion upon privacy, apart from a crime under a different law. Disclosure of a person’s “private facts” is also an invasion of privacy. These are little known, private facts that are not part of public records, not of public interest, and would be offensive to a reasonable person if made public.
In a drug offence case, a short video clip surfaced in November 2005 of a nude woman doing the “ketuk ketampi” (ear squats) in a police lock-up. The illegal recording was taken shortly after the woman and five others were arrested for drug offences in June 2005. The video clip was widely circulated and this led to the setting-up of a Royal Commission to look into procedures for conducting body searches in police lock-ups.
In another invasion of privacy case affecting a guest relations officer (2009), a Rela officer (who took a photograph of her urinating) was charged under section 509 of the Penal Code and subsequently sentenced to four months’ jail after he pleaded guilty.
In a third case affecting a popular actress, the accused was sentenced to six months’ jail for trespassing and six months’ jail for invasion of privacy.
In the distressful case of an 8-year old girl (reported missing and her body subsequently found in a bag), post-mortem photographs of her body were circulated on the Internet. Two policemen were found responsible for their circulation. The negligence suit by her parents was later settled out of court.
In 2010 Parliament had enacted the Personal Data Protection Act (PDPA), but this law focuses only on the protection of a data subject’s personal information against unlawful and improper use by data users. In short, there are limits to its application.
Infringement of privacy law brings about two consequences — a civil suit by the affected party and a criminal prosecution by the public prosecutor. The former is grounded on common law, whilst the latter is grounded on statutes like the Penal Code and the Multimedia and Communications Act 1998. The obsolete Minor Offences Act (which carries a maximum fine of RM100) should be scrapped and replaced with something more meaningful in this modern communications age.
Awareness of privacy rights in Malaysia is still lacking, and the problem is aggravated by the absence of modern legislation penalising invasions of privacy as a whole, and not just the protection of private data.
The writer formerly served the Attorney-General’s Chambers before he left for private practice, the corporate sector and academia