IS THERE A PRIVATE RIGHT TO PRIVACY IN MALAYSIA?

Abstract

Despite widespread recognition as a fundamental human right across common law and civil law jurisdictions, the right to privacy remains a novel concept yet to be fully defined in Malaysia. Due to the absence of written law, Malaysian courts remain starkly divided on whether the right to privacy can sustain a free-standing cause of action enforceable between individuals in civil actions distinct from trespass, nuisance and breach of confidence. To resolve this legal conundrum, this article examines the current state of Malaysian law in recognising invasion of privacy as an actionable tort based on conventional norms. Reference will be made to primary sources of law, i.e., the Federal Constitution, statutes, and judicial decisions, as well as secondary sources of law inclusive of scholarly writings and judicial decisions from foreign common law jurisdictions where laws on privacy have ripened, i.e. the US, UK, New Zealand, and Canada. The article consists of three parts. the first part provides a summary of normative values of privacy. Second, examination of the judicial decisions by the Malaysian Federal Court, Court of Appeal, and High Court on the right to privacy. Third, evaluation of alternative sources of written law and the common law tests to establish the tort of invasion of privacy. This article concludes that a fresh paradigm is required to develop the Malaysian legal framework on privacy to ensure coherence with its normative origins and consistency with the legal standards of other common law jurisdictions.