Sherrina Nur Elena bt Abdullah v Kent Well Edar Sdn Bhd

My Neighbour Is Spying On Me!

In the recent LoyarBurok “Msia I Can Series: The Right To Your Privacy” on BFM Radio, which I have been reliably informed is one of the top hit links on BFM, I told a story about neighbours fighting over CCTVs which faced a neighbour’s house.

In the case of Lew Cher Phow @ Lew Cha Paw & 11 Ors v Pua Yong Yong & Anor, the occupants of a house at Skudai, Johor initiated an action against their neighbour for invasion of privacy sometime in 2007.

In this case, the Defendants had installed CCTVs around their house and one of the CCTVs captured part of the Plaintiffs’ house, notwithstanding that the CCTV also captured the front yard of the Defendants’ house. The Plaintiffs complained that they were being spied on and therefore their right to privacy had been infringed. The Defendants claimed that the CCTVs were for safety reasons.

The Plaintiffs filed an interim injunction against their neighbour requesting that the CCTVs be taken down. However, the application was dismissed by the High Court on the grounds that, among others, the tort of invasion of privacy is not recognised in Malaysia (see Lew Cher Phow @ Lew Cha Paw & 11 Ors v Pua Yong Yong & Anor [2009] 1 LNS 1256).


A different kind of use of CCTV.

The case went to trial and recently the High Court allowed the CCTV to be taken down.

Justice Vernon Ong, like the judges in Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653 (impliedly recognised the tort); Lee Ewe Poh v Dr. Lim Teik Man & Anor [2010] 1 LNS 1162; and Sherrina Nur Elena bt Abdullah v Kent Well Edar Sdn Bhd (Sabah High Court Suit No. K22-187-2009-I (Unreported)), recognised the right to privacy and the tort of invasion of privacy in Malaysia.

According to the learned Judge, the test to determine whether there is an invasion of privacy of rights is:

Arising from this case are two competing values: safety and privacy. Does the defendants’ fear for their safety and security override the right to privacy of the plaintiffs? Does the CCTV surveillance constitute an intrusion or interference with plaintiffs’ right to respect for their private and family life and their home? Is the CCTV surveillance an unreasonable intrusion upon the privacy of the plaintiffs?

Ultimately this is a question of balance between the rights of the owner of the CCTV camera (the defendants) and the CCTV camera’s target (the plaintiffs).

The learned Judge held that the balance lies on the Plaintiffs. The right to privacy is a fundamental human right. On the peculiar facts of this case, the right to privacy consists of the plaintiffs’ right to private and family life and home. This is a basic right and need which everyone cherishes and holds dear. The well known saying that a man’s home is his castle holds true.

The recognition of privacy rights and invasion of the same have a tremendous impact to Malaysians. This would include the following:

  1. Employees’ right to privacy. Employers would now have to take into account of the same. Each task which affects employees’ privacy will need to be subject to a privacy impact assessment.
  2. Public authorities’ investigation powers. They now would need to take into account of an individuals’ rights. They cannot force suspects or witnesses (like Teoh Beng Hock‘s case) to reveal their personal email and computer.
  3. Celebrities’ right to privacy.
  4. Media’s right to express themselves. Media will now have to take into account of any individuals’ privacy right when reporting stories. Most litigations involving privacy rights in United Kingdom are fought by the media.
  5. The advent of Superinjunctions? Superinjunction, also known as a gagging order, refers to an order that prevents any parties from reporting details of a court case including mentioning the fact that the injunction has been taken out. This injunction was taken by many UK celebrities. Footballers John Terry and Michael Owen are known to have taken a superinjunction over their alleged extramarital affairs.
  6. Bloggers’ rights. As a consequence to the effect on authorities, bloggers’ private information such as password to their personal email and computer data are protected by the right to privacy. Authorities must take measures to ensure that their investigation does not affect the bloggers’ privacy right. However, a blogger’s identity is not protected by right to privacy (see The Author of A Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB) (16 June 2009))

The above list is non exhaustive. It is interesting to see how the right of privacy will develop further in Malaysia.

Download Written Judgement of Lew Cher Phow @ Lew Cha Paw & 11 Ors v Pua Yong Yong & Anor by Justice Vernon Ong.

Sherrina Nur Elena bt Abdullah v Kent Well Edar Sdn Bhd

Kota Kinabalu High Court Suit No.: K22-187-2009-I

The Plaintiff, who was a beauty queen, sued the Defendant for publishing, without consent, her photograph and image appearing on packaging of the Defendants’ products, particularly packages of rice being displayed and sold in various retail shops, grocery stores, supermarkets and hypermarkets in Kota Kinabalu.

The Plaintiff also discovered that her photograph and image on the Defendant’s packagings appeared on a large advertisement board
located at Kota Kinabalu, Sabah.

The Plaintiff sued for for copyright infringement and invasion of privacy.

The High Court held that:-

  1. The Plaintiff’s action for copyright infringement fails because she is not the owner of the copyright. The photographs of her were created by organizers of events where she attended or by the photographers who took them. Therefore, she has no locus standi to initiate the action.
  2. In Malaysia, the law on the invasion of privacy has developed. It is desirable especially in this internet era of Facebook and YouTube where lives can be destroyed by such unwanted invasion of privacy.
  3. Although the Plaintiff is at liberty to sue the Defendant for invasion
    of her privacy, in the instant case the Defendant did not intrude
    onto private property and took the photographs of the Plaintiff
    without her consent.
  4. The photographs were taken many years ago by someone else at beauty pageants where she participated willingly as a contestant and in public. It was not a private affair on a private property. The photographs as exhibited were also not offensive.
  5. The Plaintiff did not complain then that she had been humiliated or ridiculed or scandalized by the photograph or image.
  6. From her affidavits, these pageants were reported and the photographs were published in the local newspapers. The particular photograph or image which the Plaintiff complained was an invasion of her privacy was also published in the book by the Sabah Tourism Board in 1992. It was reproduced by the Defendant on its products. These photographs are in the public domain and cannot amount to an invasion of her privacy.

[Full Judgement: Download]<

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