Abstract
With the burgeoning technology, Malaysia has seen a staggering number of data breaches and data leaks within this past decade alone, with no signs of the trend decreasing. This has raised questions on whether the Personal Data Protection Act 2010 (PDPA) adequately protects the personal data of Malaysians. With the recent COVID-19 pandemic, data has been collected on a larger scale than before, with more frequent data leaks occurring. Hence, this study aims to analyse the adequacy of the PDPA by benchmarking it to the United Kingdom’s (UK) Data Protection Act 2018, which have seen a decrease in data breaches since the implementation of the new legislation. In this context, personal data refers to information processed or recorded that relates directly or indirectly to a data subject, who may be identified from the information and may include sensitive personal data. The study uses a doctrinal analysis methodology to best explore the ideas and concepts within the literature available regarding the protection of personal data. The study also employs a comparative analysis methodology by comparing the scope and application of Malaysian and UK legislation for benchmarking. The findings suggest that there are improvements to be made for the PDPA to be adequate.
Highlights
In Malaysia, the right to privacy is not expressly stated in the Federal Constitution
The above analysis discovered that the word “commercial transaction” in the Personal Data Protection Act 2010 (PDPA) denotes the exclusion of activities beyond the commercial atmosphere which would unlock a doorway in creating privacy invasion of individuals, causing data leaks
This study has discovered that the absence of a list of certified countries for data transfer, the implementations and security measures on the process of data outside Malaysia in the PDPA weakens the criteria of Malaysia’s adequacy to be seen and acknowledged as a safe country that secures personal data of its citizens
Summary
In Malaysia, the right to privacy is not expressly stated in the Federal Constitution. The literature further proposes that the right to privacy is embedded in civil matters as evinced in Lee Ewe Poh v Dr Lim Teik Man & Anor (2010), where the court held that the act of the plaintiff’s surgeon taking pictures of the plaintiff’s private parts amounted to a privacy breach (Halili, Abdelhameed and Ismail, 2018). Hashim and Mohd Yunus (2018) accentuate that the right to privacy in Malaysia is unclear, as elucidated in Sivarasah’s case, the court did not further elaborate whether it wants to validate such a claim on breach of privacy They further contend that the right to privacy is unclear because the term ‘privacy’ cannot be defined as it can be interpreted differently by individuals and the community. In the Malaysian Communications and Multimedia Commission, any actions that deviate from Malaysian jurisdiction can be enforced under the present law despite the method used
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