Wait, your pictures can be used without your permission in Malaysia?10 months ago
(Opening Image Credit: betanews)
Imagine this: there you are, sitting in your living room with your smartphone after a long day of work, indulging in an online video that drew you in with its witty title. You steal sips of warm coffee in between bursts of laughter, reveling in what is turning out to be a thoroughly relaxing evening.
And that's when you see it: an unmistakable image of yourself, showcased prominently as a part of the video.
That stunning moment when you see yourself in a video you don't remember being a part of. Photo Credit: GIPHY
Your first thought is, "Wait. That's my picture! Why is it in there?". Then, your mind proceeds to entertain the thousands of possible ways through which the makers of this video got their hands on a picture of you. Above all else, though, you are appalled that no one asked for your permission to use your likeness in the video – and you decide to take action.
In some cases, it may just work out fairly well, as seen in the Coffeesticks scandal where the photo of a couple was used online without that couple’s agreement or the photographer’s permission. This unpermitted usage also caused damaged the couple’s professional reputations.
However, the truth is that if all this happens to you, you might not be able to do much about it even with the law on your side.
My pictures aren't safe?
Before we begin digging into this meal, allow us to specify that two different forms of pictures are being discussed here. "Pictures of you" refers to photographs or pictures of you which were taken by someone other than yourself, while "your photos" is made up of pictures that were taken by you, regardless of whether they are of you or of other subjects.
On that note, we now present the following unfortunate truth: as of the present in Malaysia, there are no laws which explicitly prevent the usage of both pictures of you or your pictures in other mediums without your permission.
This means that if you are to encounter the situation stated above, you probably would not be able to do very much about it, unless there is sufficient evidence that a picture of you or your photo was used in a way that caused you harm or a loss – which, interestingly enough, was a core issue in the Coffeesticks scandal.
Protecting your pictures on social media can be a very tricky affair. Photo Credit: Northeastern University
There's even more grey area to deal with when it comes to social media, seeing as there are no regulations for social media in Malaysia. This translates to say that if your photos or pictures of you are taken from social media and networking websites like Facebook and Instagram, and are reposted on those sites in different forms without your explicit permission, the most you can probably do is to report this unsanctioned use to the administrators of the site or app and request that they take down the image.
How about the Personal Data Protection Act 2010?
"But what about the Personal Data Protection Act 2010?" some may ask.
Am I not protected under the Personal Data Protection Act 2010? Photo Credit: GIPHY
Surprise, surprise! The Personal Data Protection Act 2010's coverage is actually limited to personal data collected only in commercial transactions, which refers to exchanges of services, goods, insurance, or other terms as defined below:
Section 4 of the Personal Data Protection Act 2010 – Interpretation (In part):
“commercial transactions” means any transaction of a commercial nature, whether contractual or not, which includes any matters relating to the supply or exchange of goods or services, agency, investments, financing, banking and insurance, but does not include a credit reporting business carried out by a credit reporting agency under the Credit Reporting Agencies Act 2010.
Concurrently, the act explains that "personal data" is any form of information that is collected for processing during such exchanges, be it by a person or some form of equipment that was devised for this very purpose.
Section 4 of the Personal Data Protection Act 2010 – Interpretation (In part):
“personal data” means any information in respect of commercial transactions, which—
that relates directly or indirectly to a data subject, who is identified or identifiable from that information or from that and other information in the possession of a data user, including any sensitive personal data and expression of opinion about the data subject ...
As such, it would be correct to say that unless the picture of you or your photo was taken as a part of a commercial transaction and was then used outside of that context without your permission in other forms or mediums, there isn't much that can be done.
Isn't there a thing called privacy?
You may argue that when pictures of you are taken without your consent, it is an invasion of privacy, which warrants legal action in Malaysia. There is some truth to this, seeing as when it comes to the question of privacy, all Malaysians are undoubtedly entitled to their own shares of it as delineated in the Federal Constitution:
Section 5(1) of the Federal Constitution – Liberty of the person:
No person shall be deprived of his life or personal liberty save in accordance with law.
The case for privacy, however, is a bittersweet one in the context of Malaysia. This is primarily because of the fact that while privacy is recognised as a basic right of every Malaysian, the invasion of one's privacy is commonly not regarded as a ground on which you can take legal action against someone, which is why it has been a cause of great conflict in many court cases of the past.
In other words, to simplify the equation, you generally cannot sue someone for invading your privacy – even if they take or use pictures of you – in Malaysia. This outcome can differ on a case-to-case basis, but rarely so.
So how do I protect my photos?
One way to prevent your photos from being used by others without your permission, or to take action against those who do so, is to copyright those images. This can be done through patent applications to the Intellectual Property Corporation of Malaysia (MyIPO).
Nothing like a good dose of copyright to keep your intellectual property safe! Photo Credit: White River Design
In the event that you are trying to prevent pictures of you from being used by copyrighting them, however, such an arrangement is only possible if you were the one who arranged to have those pictures of you taken. This is because the Copyright Act 1987 states that in the case of photographs, the copyright owner will be the author or the person who made the arrangements for the photo to be taken:
Section 3 of the Copyright Act 1987 – Interpretation (In part):
(d) in relation to photographs, means the person by whom the arrangements for the taking of the photograph were undertaken;
So, unless you were the one who made all the necessary plans and commissions to have that picture of you taken, you are not entitled to own the copyright of that photo.
Alternatively, you may use a contract in which you allow pictures of you or your photos to be used only for specific purposes.
This contract will be between you and the party that is using your photos or likeness, and allows you to be protected from situations in which you find that your photos or pictures of you are being used without your knowledge in other mediums or forms, or for purposes other than what was agreed upon.
Get those contracts signed, if you want to be on the safe side. Photo Credit: Personnel Today
Contracts are protected under the Contracts Act 1950, and a loss-incurring breach of a contract entails the following:
Section 74(1) of the Contracts Act 1950 – Compensation for loss or damage caused by breach of contract:
When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
Both contracts and copyrights are especially handy when it comes to commercial images, such as those that were taken of you – or by you – during an event, as they ensure that your photos or pictures of you will be used only for matters pertaining to those commercial transactions or events.
The bigger picture
At this point, you probably have a better understanding of what we meant when we said that in Malaysia, there really isn't much you can do to prevent pictures of you or your photos from being used by others without permission, unless you have taken measures – like those stated above – to protect yourself.
Also remember that sometimes, the best way to approach a situation where pictures of you or your photos have been used without your permission is actually to ask the said user to remove these images. He or she probably wants to avoid trouble as well, so a mutually beneficial arrangement may be closer than you think!