This article discusses the laws on privacy and surveillance, and in particular what rights do we have with others recording videos or taking pictures of us without our consent?

Invasion of Privacy – The Scandal of Andy Hui and Jacqueline Wong

A month ago, a video of Cantonese actor Andy Hui being intimate with fellow Cantonese actress Jacqueline Wong broke the internet. Andy Hui was married and Jacqueline had a boyfriend at the time.

Within hours, the video went viral, and soon after, Andy Hui held a press conference to admit his infidelity and apologized to the public, and particularly to his wife.

The video was during a taxi ride and recorded with the security camera on the taxi.

Security cameras are installed in Hong Kong taxis for safety purposes of the customers and the drivers, for example, to use its footage as criminal evidence in the event of a robbery.

However, unfortunately in the case of Andy Hui, the footage was allegedly sold by the taxi driver to newspaper Apple Daily for a high price, which Apple Daily then capitalized and profited from it.

Questions to Ponder

There are 3 main legal questions that arise from this incident.

1. Is it legal to record individuals in a taxi car without their consent? Will signs informing the passengers that they are being recorded sufficient?
2. Can a taxi driver sell the video footage to any party, such as a media outlet, for profit, without the consent of the individuals in the video?
3. Can a media outlet, for commercial purposes, publicize a video without the consent of the individuals who were recorded in the video, even if the individuals knew they were being recorded during the ride?

Now, of course, it is not the laws of Hong Kong that are the focus of this article.

This article will discuss Malaysia’s privacy laws, where if an exact scenario happens in Malaysia (although I’d foresee it involving politicians more than celebrities), do the victims, i.e. the subjects of the video, have any cause of action in law to protect themselves or to sue for compensation?

The answer is, no (for now).

Defamation suit

Now, potentially you can take a defamation suit if a particular video, and whatever comments made together with it, lowers your reputation in public. This would be the case for Andy Hui and Jacqueline Wong.

However, the perpetrator could be protected by the defence of justification whereby he proves that whatever he said or implied was in actual fact, true, i.e. there was indeed an affair between Andy Hui and Jacqueline Wong. If he succeeds, the suit is dismissed.

Tort of Invasion of Privacy?

Then, the question becomes can we just sue for a violation of privacy alone?

While the Court has recognized that Malaysians do have a fundamental right to privacy, an interesting case that is relevant is Lew Cher Phow @ Lew Cha Paw & 11 Yang Lain Lwn. Pua Yong Yong & Satu Lagi [2009] 1 LNS 1256 which involves a neighbour who has set up a CCTV that faces their neighbour’s property.

However, the cause of action in that case was private nuisance. Hence, while the Court discussed and recognised the right to privacy in that case, the Court did not establish or recognise the tort of invasion of privacy.

Hence, the arguments on privacy can be used to support the argument that the neighbour has caused nuisance to their neighbour and the neighbour can’t justify by saying it is for security, as the Court held that the right to privacy of the Plaintiffs outweigh the security purposes the Defendants try to achieve in setting up the CCTV. However, you can’t sue base on a violation of privacy alone.

More importantly, in the recent 2017 case of Toh See Wei v Teddric Jon Mohr & Anor [2017] 1 LNS 445, the Court said this:

[58] The tort of invasion of privacy is not recognised tort under common law (see Malone v. MPC [1979] ch.344; Kaye v. Robertson [1991] FSR 62 [CA]). In Malaysia, Ultra Dimension Sdn. Bhd. v. Kook Wei Kuan [2004] 5 CLJ 283 held that there is no right to institute an action for invasion of privacy rights; Lew Chew Phow @ Lew Chee Paw v. Pua YongYong [2009] 1 LNS 1256; Dr. Bernadine [2006] 2 CLJ 117. Contrary view was taken in the case of Maslinda Ishak v. Mohd Tahir Osman & Ors. [2009] 6 CLJ 653, the Court of Appeal gave light to the tort of invasion of privacy. In that the plaintiff was granted damages for the wrongdoing of the defendant. I must stress that, however, that case was not a case directly on point as to whether the tort of invasion of privacy, is recognised tort in Malaysia. The facts of the case shows humiliation, trauma and serious mental anguish were result of the photographing of her private part.

[59] It is also recognised by this court that all the cases recognised the tort of invasion of privacy is limited to matter of private morality and modesty in particular women. Lee Ewe Poh v. Dr. Lim Teik Man [2011] 4 CLJ 397; [2010] 1 LNS 1162 is the first reported case recognising the invasion of privacy as an actionable tort. Basically the High Court relied on the decision of the Maslinda’s case.

The Court, in subsequent paragraphs, explained that recognizing the tort of invasion of privacy has a huge implication and that the Court finds that it was not necessary, for the circumstances of the case, to make such an important ruling.

So long story short, the tort of invasion of privacy, even if it exists, is only limited to circumstances when a person’s private morality or modesty was offended. For example, when there is a hidden camera in a bathroom or changing room.

Conclusion

We need better privacy laws. We need laws to prohibit recording done without consent, even if it does not involve recording private parts of our body. We need laws that can clearly and explicitly say “No.” to the three questions raised above.

Edit: Written in 2019