Topic 4 Publication of
Information Privacy and Data Protection
1. Define what is
privacy;
2. Explain the
categories of privacy;
3. Identify the
limits within which the law works to protect privacy; and
4. Discuss the
principles of data protection.
INTRODUCTION
The media in general have no right of access to
information over other members of the
public. They may obtain information by searching for them from sources available. The public has, many times,
objected to the ways in which information
about them is published and the ways in which this information is
obtained. For example, when
the media enter
premises without consent
or secretly take
photographs, the person affected describes this as an „invasion of
privacy.‰ Therefore, in this topic, we
will discuss the publication of information, particularly privacy and data protection, in greater
detail.
4.1 WHAT
IS PRIVACY?
Before we proceed,
do you know
the meaning of
privacy? Privacy has
been defined as follows (see Table
4.1):
Table 4.1: Definition of Privacy
Definition of Privacy
Source / A sphere
of space that has not been dedicated to public use or Professor Milton control.
It is a
kind of space
that a man
carries with him
into his Konvits bedroom
or into the
street. Then when
public / is
part of his
property / with
respect to
which its owner
has delegated no
power to the state / The desire
of people to choose freely under what circumstances and Alan Westin
privacy to what
extent they will
expose themselves, their
attitude and scholar
behaviour to others. No one
shall be subjected to arbitrary interference with his privacy,
Article 12 Universal
family, home or correspondence, or to attacks upon his honour and Declaration of Human reputation. Everyone
has the right
to the protection
of the law
Rights against such interference
or attacks.
? Everyone has the right to respect for his private and
family life,
Article 8 of the
his home and his correspondence.
European Convention
on Human Rights ? There
shall be no
interference by a
public authority with
the (ECHR) exercise of this
right except such as in accordance with the law and
is necessary in
a democratic society
in the interests
of national security,
public safety or
the economic well-being
of the
country, for the
prevention of disorder
or crime, for
the protection of
health or morals,
or for the
protection of the
rights and freedoms of others.
4.2
CATEGORIES OF PRIVACY Mainly, there
are four categories of privacy (refer to Table 4.2):
Table 4.2: Categories of Privacy
Categories of Privacy
Description
Information privacy
This refers to such information that is not available to
the public, for example, information
on the private lives of a public figure.
Bodily privacy. This
refers to the
right to have
a personal space,
for example, pictures of
the private lives of a celebrity.
Communications
This refers to
whatever communications made
between persons. It
privacy
should not be secretly listened to and published by others.
Territorial privacy
This is similar to bodily privacy. Where bodily privacy
refers more to a person’s space,
territorial privacy refers to certain premises, for example, the person’s house.
4.3 HOW
PRIVACY MAY BE PROTECTED
There is no doubt that the right to privacy has often
been acknowledged to exist; however, its
protection by courts is vague. The courts do not recognise a right to privacy per se. Privacy has been indirectly
recognised through other areas of the
law (refer to Table 4.3):
Table 4.3: Areas of the Law Areas of the Law
Description Trespass
The key element in all forms of trespass is that the
wrong is actionable per se,
that is to
say, the plaintiff
can sue even
though he has
suffered no damage (W.V.H. Rogers, 1994). The tort of
trespass to land rewards the land owner for a temporary loss of use of his
land. For example, in the pursuit of information, the media trespassed
on the owner’s land (Wacks, 1995).
Nuisance
Nuisance has been defined as the unlawful interference
with a person’s use or enjoyment of
land, or some right over, or in connection with it,
The interference needs to be on-going (more than once)
(W.V.H. Rogers, 1994).
Defamation
Defamation
protects a person’s
reputation. In relation to
protecting
privacy, defamation protects a person’s reputation from being
published,
from being exposed to the public. However, the weakness of this area
of law in relation
to privacy is
the defence of
justification (truth) in defamation is an
absolute defence.
Confidential
Confidential
information law protects
that information that
is secret. In
Information
certain circumstances the
law imposes a
duty on the
recipient of information to
keep certain information confidential. Not all information can be bought and
sold as one pleases.
4.4 WHAT IS DATA PROTECTION?
In Malaysia, there
is no express
provision for the
protection of privacy
per se. Thus, there is a pressing need to protect
personal data. According to Mohamed Nor
Hj Abd Aziz (2003), The term personal data protection (PDP) and privacy has been used interchangeably. It is a
universal value relevant to each individual,
as it inheres the dignity of the individual. The legislation on privacy
provides the opportunity for individuals
to the rights of protection for their personal privacy. The
PDP would complement the
existing cyber laws.
Initially, a proposed
Personal Data Protection Bill
(PDP) aims to
address personal data.
Data protection is
the protection of
any form of
data. It may
be personal data,
or business data.
However, as stated
earlier, Malaysia intends
to enforce the
protection of personal
data by having
the Personal Data
Protection Bill (PDP).
The scope of this bill is any personal data relating to individuals. Section
2 of the Bill defines personal data.
Section 2 provides:
Any information recorded
in a document
in which it
can practically be
processed wholly or
partly by any
automatic means or
otherwise which relates
directly or indirectly to a living individual who is
identified or identifiable from that information or from that and other information in the
possession of the data user including and any indication of the intentions of the data
user in respect of that individual.
4.5
PRINCIPLES ON DATA PROTECTION
The PDP lays down nine data protection principles (in the
First Schedule). Section 4 provides that
data users must comply with the nine principles. The nine data protection principles are:
(a) Principle 1:
Fair Collection Principle
Manner of collection of personal data This principle
provides for the
fair and lawful
collection of data
for a lawful purpose related to the
function of the data user
(b) Principle 2:
Purpose Specification Principle
Purpose of collection of personal data
This
provides for adequate,
relevant but not excessive
collection of data
for a lawful purpose related to the function of the data user.
(c) Principle 3:
Use Limitation Principle
Use of personal data
Provides
that unless with
the consent of
the data subject,
personal data should be
used only for
the purpose for
which they are
collected or a
purpose directly related to the purpose for which they are
collected.
(d) Principle 4:
Confidentiality Principle
Disclosure of personal data
Provides that unless the data subject gives consent,
personal data can only be
disclosed for the purpose of which the data was obtained or a directly related purpose.
(e) Principle 5:
Accuracy Principle
Accuracy of personal data
Provides
that personal data
should be accurate,
complete, relevant, not
misleading and up to date.
(f) Principle 6:
Minimality Principle
Duration of personal data
Provides that personal data should not be kept longer
than necessary.
(g) Principle 7:
Individual Participation Principle
Access to and correction to personal data
Provides for individuals to have rights of access to and
correction of their personal
data
Security of personal data
Requires practical measures to safeguard security of
personal data.
(i) Principle 9:
Accountability Principle
Information to be generally available
Requires data users to be open about the data held and
the main purpose for which the
data are to be used. The data privacy policy of the data user should be ascertainable. However, after consultation with
various sections of the public and
industry, it was later suggested that
the first draft PDP will be modified in accordance with the United States Safe Harbour arrangement.
It will be divided into two sectors, the
private and public sector.
The private sector
PDP principles (Mohamed
Nor Hj Abd
Aziz, 2003) are
as follows:
(a) Notice
Principle;
(b) Choice
Principle; (c) Disclosure Principle;
(d) Security
Principle;
(e) Data
Integrity Principle;
(f) Access
Principle; and
(g) Enforcement
Principle.
The Public Sector
PDP Principles (Mohamed Nor
Hj Abd Aziz,
2003) are as
follows:
(a) Collection,
use and disclosure by public sector only by written law;
b) Right to
access by written law;
(c)
Responsibility to protect personal data; and
(d) Public
sector to have a PDP policy.
SELF-CHECK 4.1
1. Explain what is privacy.
2. How is privacy protected? Explain.
3. Explain what is data proctection.
ACTIVITY 4.1
Discuss the
applicable areas of
law that protects
privacy and examine whether it protects privacy.
? Everyone has the right
of respect for his private and family life, his home and his correspondence.
? People may
choose freely under
particular circumstances and
the extent to
which they will expose themselves, their attitude and behaviour to
others.
? The courts do not
recognise a right to privacy per se.
? Privacy has
been indirectly recognised
through other areas
of the law
like trespass, nuisance,
confidential information and defamation.
? Personal Data
Protection Bill (PDP) addresses personal data.
? The PDP lays down nine
principles on data protection.
Confidential
information
Nuisance Data
Personal space
Data principles
Right of access to
information
Defamation
Trespass
Invasion of privacy
