I WAS flabbergasted when I read a recent news in an online portal that a religious affairs department official in a southern state had recorded a video clip of a well-known singer as she uttered the syahadah to embrace Islam. Not only was the video clip recorded without her consent, it was also uploaded in cyberspace.
It was a gross invasion of the young woman’s personal privacy and appropriate action should be taken against the officer who did this shameful act. Before I explain the elements of the law of privacy, let me summarise the facts of this latest unfortunate incident.
The singer, a native of Sabah, had gone to the government department to perform the conversion ceremony (uttering the syahadah) before the appointed official on the understanding that the entire proceeding would be held in camera and be kept confidential from public knowledge. She said that when she entered the department’s premises that morning, she took great pains to hide her true identity so that, according to her, “the whole process of my embracing Islam will take place smoothly”. She added that for the moment she did not want her change of faith to become public knowledge.
Obviously distressed that her privacy had been invaded, the young lady lamented: “I am really very sad to see that a video of that event had been recorded without my consent and then made available on the Internet.”
The right to privacy has three distinct dimensions – one, the right to be left alone; two, the right to exercise control over one’s personal information; and three, the right to protect one’s dignity and autonomy. Put differently, the right to privacy includes physical privacy, information privacy and freedom of excessive surveillance.
An intrusion into a person’s privacy occurs when somebody else intentionally intrudes (physically, electronically or otherwise) upon the private space, solitude or seclusion of a person, or intrudes into the private affairs or concerns of a person. Hacking a computer is an example of intrusion upon privacy. Taking a photo or recording a video of a person without his/her consent is
an intrusion into that person’s privacy.
For the moment, there is no specific legislation (such as a Privacy Act) to protect personal privacy in this country. What we have so far is the Personal Data Protection Act 2010 which only protects the personal data of a data subject. The law of privacy in Malaysia is, therefore, very much grounded in common law. Unlike the law of libel, truth is not a defence for invasion of privacy.
This recent episode involving the singer reminded me of an awful case in November 2005 when a 70-second video clip went viral in cyberspace of a woman performing (in the nude) the ketuk ketampi procedure in a police lock-up. This shameful incident finally led to the setting-up of a Royal Commission to look into the procedures of conducting body searches in police lock-ups throughout the country. The woman filed a civil suit against the Malaysian government, but the case was ultimately settled out of court.
There are other privacy invasion cases involving public officials, such as the case involving a guest relations officer, Maslinda Ishak, in March 2003. This case ultimately reached the courts and became the leading case on privacy law in this country. In that case, the
offending public official was a Rela officer who took part in an enforcement action mounted by a religious affairs department. She sued the Federal Government and
was ultimately awarded damages of RM100,000 for invasion of privacy.
Actress Nasha Aziz was also a victim of invasion of privacy when a hidden camera was installed in her condominium unit in Jalan Ampang. The culprit, a youth named Ahmad Bakhtiar Abdul Kayoom, was convicted in 2002 and sentenced to six months' jail for trespassing and another six months for invading the privacy of the actress. He appealed, but the appeal was rejected and his conviction and prison term was upheld by the Court of Appeal in October 2008.
Knowledge and awareness of privacy law is at best minimal (if not totally zero) amongst public officials. Heads of department should advise their subordinates that they have no right whatsoever to take photos or record videos of citizens without their consent, even if the latter are at that point in time under investigation.
The writer formerly served the Attorney-General’s Chambers before he left for
private practice, the corporate sector and then academia