DLA Piper Intelligence

Data Protection
Laws of the World

Law

Malaysia
Malaysia

Malaysia’s first comprehensive personal data protection legislation, the Personal Data Protection Act 2010 (PDPA), was passed by the Malaysian Parliament on 2 June 2010 and came into force on 15 November 2013.

Last modified 26 Jan 2017
Law
Malaysia

Malaysia’s first comprehensive personal data protection legislation, the Personal Data Protection Act 2010 (PDPA), was passed by the Malaysian Parliament on 2 June 2010 and came into force on 15 November 2013.

Last modified 26 Jan 2017
Definitions

Definition of personal data

’Personal data’ means any information in respect of commercial transactions, which:

  • is being processed wholly or partly by means of equipment operating automatically in response to instructions given for that purpose

  • is recorded with the intention that it should wholly or partly be processed by means of such equipment, or

  • is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, 

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; but does not include any information that is processed for the purpose of a credit reporting business carried on by a credit reporting agency under the Credit Reporting Agencies Act 2010.

Definition of sensitive personal data

’Sensitive personal data’ means any personal data consisting of information as to the physical or mental health or condition of a data subject, his political opinions, his religious beliefs or other beliefs of a similar nature, the commission or alleged commission by him of any offence or any other personal data as the Minister of Information, Communications and Culture (Minister) may determine by order published in the Gazette.  Other than the categories of sensitive personal data listed above, the Minister has not 'Gazetted' any other types of personal data to be sensitive personal data as of 21 December 2016.

Last modified 26 Jan 2017
Authority

Pursuant to the PDPA, a Personal Data Protection Commissioner (Commissioner) has been appointed to implement the PDPA’s provisions. The Commissioner will be advised by a Personal Data Protection Advisory Committee who will be appointed by the Minister, and shall consist of one Chairman, three members from the Public sector, and at least seven but no more than eleven other members. The appointment of the Personal Data Protection Advisory Committee shall not exceed a term of three years, however members can be appointed for two terms in succession.

Decisions of the Commissioner can be appealed against through the Personal Data Protection Appeal Tribunal. These are decisions such as:

  • decisions relating to the registration of data users under Part II Division 2 of the PDPA
  • the refusal of the Commissioner to register a code of practice under Section 23(5) of the PDPA
  • the service of an enforcement notice under Section 108 of the PDPA
  • the refusal of the Commissioner to vary or cancel an enforcement notice under Section 109, or
  • the refusal of the Commissioner to conduct or continue an investigation which is based on a complaint under Part VIII of the PDPA.

If a data user is not satisfied with a decision of the Personal Data Protection Advisory Committee, the data user may proceed to file a judicial review of the decision in the Malaysian High Courts.

Last modified 26 Jan 2017
Registration

Currently, the PDPA requires the following classes of data users to register under the PDPA:

  1. Communications
    • A licensee under the Communications and Multimedia Act 1998
    • A licensee under the Postal Services Act 2012
  2. Banking and financial institution
    • A licensed bank and licensed investment bank under the Financial Services Act 2013
    • A licensed Islamic bank and licensed international Islamic bank under the Islamic Financial Services Act 2013
    • A development financial institution under the Development Financial Institution Act 2002
  3. Insurance
    • A licensed insurer under the Financial Services Act 2013
    • A licensed takaful operator under the Islamic Financial Services Act 2013
    • A licensed international takaful operator under the Islamic Financial Services Act 2013
  4. Health:
    • A licensee under the Private Healthcare Facilities and Services Act 1998
    • A holder of the certificate of registration of a private medical clinic or a private dental clinic under the Private Healthcare Facilities and Services Act 1998
    • A body corporate registered under the Registration of Pharmacists Act 1951
  5. Tourism and hospitalities
    • A licensed person who carries on or operates a tourism training institution, licensed tour operator, licensed travel agent or licensed tourist guide under the Tourism Industry Act 1992
    • A person who carries on or operates a registered tourist accommodation premises under the Tourism Industry Act 1992
  6. Transportation
    • Malaysian Airlines System (MAS)
    • Air Asia
    • MAS Wings
    • Air Asia X
    • Firefly
    • Berjaya Air
    • Malindo Air
    • Malaysia Airlines Berhad
  7. Education
    • A private higher educational institution registered under the Private Higher Educational Institutions Act 1996
    • A private school or private educational institution registered under the Education Act 1996
  8. Direct selling
    • A licensee under the Direct Sales and Anti-Pyramid Scheme Act 1993
  9. Services
    • A company registered under the Companies Act 1965 or a person who entered into partnership under the Partnership Act 1961 carrying on business as follows:
      • legal
      • audit
      • accountancy
      • engineering
      • architecture
    • A company registered under the Companies Act 1965 or a person who entered into partnership under the Partnership Act 1961, who conducts retail dealing and wholesale dealing as defined under the Control Supplies Act 1961
    • A company registered under the Companies Act 1965 or a person who entered into partnership under the Partnership Act 1961, who carries on the business of a private employment agency under the Private Employment Agencies Act 1981
  10. Real estate:
    • A licensed housing developer under the Housing Development (Control and Licensing) Act 1966
    • A licensed housing developer under the Housing Development (Control and Licensing) Enactment 1978, Sabah
    • A licensed housing developer under the Housing Developers (Control and Licensing) Ordinance 1993, Sarawak
  11. Utilities
    • Tenaga Nasional Berhad
    • Sabah Electricity Sdn. Bhd
    • Sarawak Electricity Supply Corporation
    • SAJ Holding Sdn. Bhd
    • Air Kelantan Sdn. Bhd
    •  LAKU Management Sdn. Bhd
    • Perbadanan Bekalan Air Pulau Pinang Sdn. Bhd
    • Syarikat Bekalan Air Selangor Sdn. Bhd
    • Syarikat Air Terengganu Sdn. Bhd
    • Syarikat Air Melaka Sdn. Bhd
    • Syarikat Air Negeri Sembilan Sdn. Bhd
    • Syarikat Air Darul Aman Sdn. Bhd
    • Pengurusan Air Pahang Berhad
    • Lembaga Air Perak
    • Lembaga Air Kuching
    • Lembaga Air Sibu
    • Pengurusan Air Selangor Sdn. Bhd
  12. Pawnbroker
    • A licensee under the Pawnbrokers Act 1972
  13. Moneylender
    • A licensee under the Moneylenders Act 1951

Certificates of registration are valid for a period of at least one year (but presently, the Commission grants certificates of registration which are valid for a period of two years), and a data user who fails to renew a certificate of registration and continues to process personal data after the expiry of the certificate of registration commits an offence.

Data users are also required to display their certificate of registration at a conspicuous place at their principle place of business, and a copy of the certificate for each branch, where applicable.

The Commissioner may designate a body as a data user forum in respect of a class of data users. Data user forums can prepare codes of practice to govern compliance with the PDPA which can be registered with the Commissioner. Once registered, all data users must comply with the provisions of the code, and non-compliance is an offence under the PDPA.

Therefore, companies may want to consider participating in such data user forums to take part in shaping the codes of practice, as this provides them with an opportunity to influence the codes of practice which companies will ultimately have to comply with.

Last modified 26 Jan 2017
Data Protection Officers

Currently, there is no requirement for data users to appoint a data protection officer in Malaysia. 

Last modified 26 Jan 2017
Collection & Processing

Under the PDPA, subject to certain exceptions, data users are generally required to obtain the consent of data subjects for the processing (which includes collection and disclosure) of their personal data. Where consent is required from a data subject under the age of eighteen, the data user shall obtain consent from the parent, guardian, or person who has parental responsibility on the data subject.

Further, the consent obtained from a data subject must be in a form that such consent can be recorded and maintained properly by the data user.

There are also other obligations imposed on the data user in relation to the processing of personal data, including, for example, requirements to notify the data subjects regarding the purpose for which their personal data are collected.

In terms of disclosure to third parties, in addition to obtaining the consent of the data subject for such disclosure, data users must ensure that they keep and maintain a list of the disclosures to third parties.

On 23 December 2015, the Commissioner published the Personal Data Protection Standard 2015 (Standards), which provides the minimum requirements for processing personal data issued by the Commissioner. Data users must ensure that it takes into account the matters set out in the Standards in the processing of personal data. The Standards include the establishment of standards for the following matters:

  • Security Standard For Personal Data Processed Electronically
  • Security Standard For Personal Data Processed Non-Electronically
  • Retention Standard For Personal Data Processed Electronically And Non-Electronically
  • Data Integrity Standard For Personal Data Processed Electronically And Non-Electronically.
Last modified 26 Jan 2017
Transfer

Under the PDPA, a data user may not transfer personal data to jurisdictions outside of Malaysia unless that jurisdiction has been specified by the Minister.

However, there are exceptions to this restriction, such as where:

  • the data subject has given his consent to the transfer
     
  • the transfer is necessary for the performance of a contract between the data subject and the data user
     
  • the data user has taken all reasonable steps and exercised all due diligence to ensure that the personal data will not be processed in a manner which, if that place were Malaysia, would contravene the PDP, and
     
  • the transfer is necessary to protect the data subject’s vital interests.
Last modified 26 Jan 2017
Security

Under the PDPA, data users have an obligation to take ‘practical’ steps to protect personal data and in doing so shall develop and implement a security policy. The Commissioner may also from time to time set out security standards which the data user must comply with, and the data user is required to ensure that its data processors also comply with these security standards.

In addition, the Standards provide separate security standards for personal data processed electronically and for personal data processed non-electronically (among others) and require data users to have regard to the Standards in taking practical steps to protect the personal data from any loss, misuse, modifications, unauthorized or accidental access or disclosure, alteration or destruction of personal data.

Last modified 26 Jan 2017
Breach Notification

There is no requirement under the PDPA for data users to notify authorities regarding data protection breaches in Malaysia.

Last modified 26 Jan 2017
Enforcement

Under the PDPA, the Commissioner is empowered to implement and enforce the personal data protection laws and to monitor and supervise compliance with the provisions of the PDPA. Under the Personal Data Protection Regulations 2013, the Commissioner has the power to inspect the personal data system and the data user is required, at all reasonable times, to open the personal data protection system for inspection by the Commissioner or any inspection officer. The Commissioner or the inspection officers may require the production of the following during inspection:

  • in relation to general principle, the record of the consent from a data subject maintained in respect of the processing of personal data by the data user
  • in relation to notice and choice principle, the record of a written notice issued by the data user to the data subject
  • in relation to disclosure principle, the list of disclosure to third parties in respect of personal data that has been or is being processed by him
  • in relation to security principle, the security policy developed and implemented by the data user
  • in relation to retention principle, the record of compliance in accordance with the retention standard
  • in relation to data integrity principle, the record of compliance in accordance with the data integrity standard, and
  • such other related information which the Commissioner or any inspection officer deems necessary.

Violation of the PDPA and certain provisions of the Personal Data Protection Regulations 2013 attracts criminal liability. The prescribed penalties include the imposition of fines or a term of imprisonment, or both. Directors, CEOs, managers or other similar officers will have joint and several liability for non-compliance by the body corporate, subject to a due diligence defence.

However, there is no express right under the PDPA allowing aggrieved data subjects to pursue a civil claim against data users for breaches of the PDPA.

Last modified 26 Jan 2017
Electronic Marketing

The PDPA applies to electronic marketing activities that involve the processing of personal data for the purposes of commercial transactions. There are no specific provisions in the PDPA that deal with electronic marketing. However, the PDPA provides that a data subject may, at any time by notice in writing to a data user, require the data user at the end of such period as is reasonable in the circumstances to cease or not to begin processing his personal data for purposes of direct marketing. ‘Direct marketing’ means the communication by whatever means of any advertising or marketing material which is directed to particular individuals.

Last modified 26 Jan 2017
Online Privacy

There are no provisions in the PDPA that specifically address the issue of online privacy (including cookies and location data). However, any electronic processing of personal data in Malaysia will be subject to the PDPA and the Commissioner may issue further guidance on this issue in the future.

Last modified 26 Jan 2017
Contacts
Sharon Tan
Sharon Tan
Partner
T +603 20879849
Last modified 26 Jan 2017