Her video received many encouragements and support by most fellow internet users. However, amidst the words of encouragement, there is a number of commentators who took the side of her uncalled mini film crew. One particular comment raised the argument that the taking of photos of others in public raises no illegality issues in Malaysian law and as a law student, this stirred my interest and I was stoked to find out the answer to it. 

The issue revolves around the right to privacy of a person. Infringement of privacy was first taken seriously as an offence in Maslinda Ishak v. Mohd Tahir Osman & Ors [2009]. The courts held the defendant guilty of taking unconsented photos of the claimant urinating and the defendant was subsequently charged under the Penal Code Section 509: Word of Gesture Intended to Insult the Modesty of a Person.[1]. However, the infringement of privacy of the claimant was never a paramount issue here and despite the case being submitted for appeal, charges under the Penal Code Section 509 were never contended.

It was not until the subsequent case of Lee Ewe Poh v. Dr. Lim Teik Man & Anor [2010] where invasion of privacy was officially endorsed as an actionable tort[2], thus effectively departing from the old English law. Right to privacy was meticulously dwelled on in this case. The claimant sued her doctor for taking photos of her private parts during surgery which was brought on the basis of a violation of her privacy rights as she was not asked beforehand and thus never consented to the photo shots. Furthermore, in the following case, Toh See Wei v. Teddric Jon Mohr & Alfred Charles Poey, the judge conceded and elaborate on the decision in Maslinda; due to the defendant’s act, the claimant had suffered humiliation and mental trauma arising from such invasion of her privacy[3].

The victorious outcomes for the claimants present itself as a huge step forwards towards the protection of privacy rights of individuals, most notably, women, in Malaysia’s legal arena. Previously, violation of privacy rights was never recognised as an actionable tort, as per the case of Ultra Dimension Sdn Bhd v. Kook Wei Kuan [2004], and Lew Cher Phow @ Lew Cha Paw & Ors lwn. Pua Yong Yong & Satu Lagi [2009]. In both cases, courts took the position that individuals would have zero rights to start an action against the violation of privacy rights.

It was a huge leap of faith by the Malaysian law from the old English law which is extensively followed by the judiciary system in Malaysia. Malaysian judiciary is taking a stance to serve protection on a person’s right to maintain their modesty and decency in public, especially when it concerns a lady’s modesty and dignity as evident from Lee Ewe Poh[4]. Malaysian courts are starting to endorse the need to be sensitive to issues pertaining a women’s modestly, decency and dignity as her fundamental right in sustaining the high moral standards as socially required of women[5]. It seems like the Malaysian courts had set sail on a voyage through uncharted waters, what is known as invasion of privacy as an actionable tort.

Nonetheless, it was not expected for the reformation of privacy rights to be a bed of roses for anyone who wishes to bring a claim on infringement of their privacy rights in court.  Prospects of an individual’s protection against their violation of privacy rights may seem to have improved however much of it is still in murky waters.

From the outlook of it, public violation of privacy rights all predominantly come under the Penal Code Section 509: Word of Gesture Intended to Insult the Modesty of a Person, which states that:

“whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both.”

Similarly, this was the approach taken in a recent case concerning the suicide of a girl after her ex-boyfriend threatened to leak her private photos onto social media[6].

Notice that the current governing legislation places the focus on the presence of an insult of a person’s modesty rather than an upfront confrontation of the legality of taking photos of another in a public setting without the person’s consent. This implies that despite Malaysian laws having evolved to recognise a person’s right to privacy, one still has many hurdles to cross as it would normally take additional elements such as humiliation, harassment or damage to one’s reputation for it to be an actionable tort[7].

Till date, there is not yet a legislation tailored made for the violation of a person’s right to privacy. The closest Malaysia has to a law on protection of privacy rights is Article 5 of the Federal Constitution,[8] and even that does not provide a private individual the right to bring a legal claim against another private individual as mentioned in Beartice a/p AT Fernandez v. Sistem Penerbangan Malaysia & Ors [2005].[9]

Much is yet to be seen for scenarios which does not involves the filming of women in their most vulnerable states. For example, what if the unwarranted photos are virtually harmless, such as taking covert snapshots of a cute guy sitting opposite you in the MRT? It was suggested that the circumstances in Ultra Dimension Sdn Bhd, can also be distinguished from the circumstances in Maslinda and Lee Ewe Poh. A photo of you with a group of kindergarten children is not as highly offensive as having photos of your private parts taken[10].

Furthermore, the ruling in Lee Ewe Poh cannot be taken as a full-blown endorsement of a total protection of one’s privacy rights. The presiding judge in the case had cautioned that a distinction must be drawn between taking photographs of extremely private parts of a female’s body and the more “normal parts” of her body such as her hands or feet[11].

The judge in Toh See Wei had cautioned the rippling effects of the recognition of privacy rights in Malaysia. If privacy laws were not properly construed, admissibility issues of illegally obtained evidence might be hampered over concerns of privacy rights which may obstruct the execution of justice[12]. Arguably, if excessive or exclusive consideration was placed on privacy rights, there could be a danger of disregarding general interest objectives such as fighting of crime and terrorism[13].

Overprotection of privacy rights would also greatly reduce the right of the media to report on individuals[14]. The press and media were usually given a broad scope of protection in respect of their roles as the “public watchdog” and their democracy-fostering functions.[15]The media had been widely recognised as a medium to help mould an informed public opinion and induce critical debates on issues concerning public interest.[16] As the old adage goes, “knowledge is power,” and privacy rights could possibly be used as an excuse to rob the public off the power they wield over public figures. It is In the public’s interest to be informed and to determine whether impugned conduct oversteps permitted boundaries[17].

Now, back to the tik tok incident which inspire me down the road of research, some of the commentators are actually voicing out their despair and agony for being wrongly called out for filming another member of public due to some unwitting position they are in with their handphones at the time. Naturally, such arguments would stand.

However, it cannot be denied that there is a number of commentators who hid their true misogynistic views behind the strong walls of a valid argument. The law seems to recognise this as evidently most cases that see a successful claimant on their rights to privacy involves ladies who had their modesty infringed. Therefore, if Malaysia were to draft a legislation specialising on privacy rights, it should come at a mid-point where both arguments can be consolidated and a balance between one’s right to privacy and a person’s freedom of expression could be struck. As mentioned by Lord Hoffmann in the English landmark case of Campbell v Mirror Group Newspapers,[18] who referenced Gleeson CJ words,

”part of the price we pay for living in an organised society is that we are exposed to observation in a variety of ways by other people.”[19]

In conclusion, the law as of now would not prosecute anyone who decides to take some secret snapshots of you while you are in public. Basically, once you are out in the eyes of the public, you could potentially be a candid model for any members of public so long as no modesty or dignity of a person is harmed. Your consent is given once you step out of the comforts of your home.