High Court of Sabah and Sarawak

In November 2008, the Plaintiff returned to Kota Kinabalu and

discovered that her photographs and image appeared on the

packaging of the Defendant’s 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 Jalan Sentral Sepanggar/Sulaman, Kota Kinabalu,

Sabah.

The Plaintiff avers that she has rights to privacy and is the rightful

owner of the copyright of her own photograph and image. The

Plaintiff avers that she has never authorized nor granted any

permission or license to the Defendant to reproduce or to deal in

any way whatsoever the Plaintiff’s photograph and image.

The Plaintiff avers that she was married in 1995 and converted to

Islam. The Plaintiff avers that she has decided to withdraw from

the beauty pageant industry and as a Muslim she wears headscarf

(“tudung”) as her daily religious practice. The Plaintiff avers that

the Defendant has violated her rights to her personal and religious

values and principles and has also invaded her rights to publicity

privacy.

The Plaintiff avers that she has been greatly injured in her credit,

character and reputation by the Defendant’s flagrant disregard of

her rights to privacy. The Plaintiff has instructed her solicitors

Messrs. Mahap Jelani & Co. to issue three notices of demand

dated 14.4.2009, 19.5.2009 and 30.6.2009 respectively to the

The Defendant denies any liability and avers that the copyright to

all photographs taken of her and any print so created are owned by

the organizer the Unduk Ngadau Association or the photographer

who took them. Similarly, the copyright to all photographs taken

of her in the Miss Sabah China Town and the Miss Sabah Universe

Malaysia contests and any print so created are owned by their

organizers or the photographers who took them respectively and

not by the Plaintiff as alleged or at all.

In the further alternative, the Defendant avers that if (which is

denied) the copyright subsisted in the print in the Defendant’s

packages and the advertisement board, the Defendant does not

admit to any infringement of any copyright because at the time

the Defendant was not aware and had no reasonable grounds for

suspecting that any copyright subsisted in the print.

O33 R2 provides that the court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or

otherwise, to be tried before, at or after the trial of the cause or

matter, and may give directions as to the manner in which the

question or issue shall be stated. As a general rule the court will

not exercise its power under O33 R2 to order a preliminary point of

law to be tried whether or not that point involves the prior

determination of factual disputes affecting that point, unless the

trial of that issue will result in a substantial saving of time and

costs in respect of the trial of the action: Federal Insurance Co v

Nakano Singapore (Pte) Ltd [1992] 1 SLR 390.

Section 7 (1) (c) of the Copyright Act 1987 provides that artistic

works shall be eligible for copyright. “Artistic work” is defined in

s.3 of the Act to mean (a) a graphic work, photograph, sculpture or

collage, irrespective of artistic quality. Therefore a photograph or

Under copyright law, a person who creates a piece of work such as

a poem, a play, a photograph or a painting is the author and

usually the owner of the copyright in the piece of work. Where the

piece of work is created within the scope of and in the course of his

employment, the copyright vests in his employer subject to any

contract affecting such ownership: see s.26 Copyright Act 1987.

The burden is on the Plaintiff to prove authorship in the

photograph or image. To establish infringement of copyright, there

must be two elements of sufficient objective similarity between the

infringing work and the copyright work and that the copyright

work must be the source from which the infringing work is derived:

Mohd. Ramly @ Dzulkifli bin Ismail v Sarimah Film Production Sdn

Bhd & Anor (1984) 1 CLJ 105.

The Plaintiff has exhibited a letter from the Sabah Tourism Board to state that the Board did not release the photograph or image

which was published in a book by the Board called “Cultures,

Customs and Traditions of Sabah, Malaysia An Introduction” in

receive any request or permission from anyone to use the

photograph or image. This will implicitly mean that the Board is

the owner of the copyright or has the permission from the author

or owner thereof to publish the photograph or image in the book.

That would effectively exclude the Plaintiff to be the owner of the

copyright and the right to sue for infringement of the copyright.

Neither the Plaintiff nor the Defendant has identified the photographer or author of the photograph or image used by the Defendant. The Plaintiff has not affirmed any affidavit to say that she has been assigned or owns the copyright to the photograph or

image used by the Defendant pursuant to an agreement with the

photographer or author or owner or the Sabah Tourism Board and

or the organizers of the various beauty pageants in which she took

part during which the photograph or image was taken or produced.

The Plaintiff did not exhibit any such agreement or affidavit or

declaration to show that she has been assigned or licensed and is

the owner of the copyright in the photograph or image to entitle her

to sue the Defendant for infringement of copyright.

S.37 (1) of the Act provides that infringements of copyright shall be

actionable at the suit of the owner of the copyright. Since the

Plaintiff has not shown that she is the owner of the copyright in

the photograph or image used by the Defendant, she cannot sue

and has no locus standi to sue the Defendant for infringements of

the copyright: see Ultra Dimension Sdn Bhd v Ketua Pengarah,

Lembaga Penggalakan Malaysia & Ors (2010) 8 CLJ 245.

Next it was submitted that privacy rights is not recognized under

the English common law, citing the case of Ultra Dimension Sdn

Bhd v Kook Wei Kuan [2004] 5 CLJ 285 where it was held that

English common law does not recognize privacy rights; therefore

invasion of privacy rights does not give rise to a cause of action.

However, that case went on to say that there is an exception (at

page 290), a cause of action may only arise if the photographs were

highly offensive in nature and showed a person in an embarrassing

In Douglas v Hello! Ltd [2001] 2 WLR 992, although the case was

not pleaded and it was not decided on the question of invasion of

privacy, Sedley LJ observed that “What a concept of privacy does,

however, is accord recognition to the fact that the law has to

protect not only people whose trust has been abused but those

who simply find themselves subjected to an unwanted intrusion

into their personal lives. The law no longer needs to construct an

artificial relationship of confidentiality between intruder and

victim: it can recognize privacy itself as a legal principle drawn

from the fundamental value of personal autonomy.” On appeal in

related suits, the House of Lords decided the appeals on breach of

contract and confidentiality and did not to extend the common law

to include the tort of privacy: OBG Ltd and Another v Allan and

Others [2008] 1 AC 1.

Similarly, in ABC v Lenah Game Meats Pty Ltd [2001] HCA 63 the High Court of Australia declined to declare that invasion of privacy is a new tort. Gleeson CJ said that the lack of precision of the concept of privacy is a reason for caution in declaring that it is a

new tort and went on to say that certain kinds of information

about a person, such as information relating to health, personal

relationships, or finances, may be easy to identify as private; as

may certain kinds of activity, which a reasonable person, applying

contemporary standards of morals and behavior, would

understand to be meant to be unobserved. The requirement that

the disclosure or observation of information or conduct would be

highly offensive to a reasonable person of ordinary sensibilities is

in many circumstances a useful practical test of what is private.

In Malaysia, the law on the invasion of privacy has developed since

then. It is desirable especially in this internet era of Facebook and

U-Tube where lives can be destroyed by such unwanted invasion of

privacy. The High Court at Penang allowed such a claim for

invasion of privacy in the case of Lee Ewe Poh v Dr. Lim Teik Mau &

Anor [2010] 1LNS 1162 where it was held that a surgeon must

obtain the consent of their female patients before taking

photographs of their intimate parts during surgical procedures.

Although that case can be categorized as a breach of trust and

confidentiality because of the doctor-patient relationship, the High

Court expressly allowed the Plaintiff’s claim which inter alia

pleaded an invasion of her rights to privacy.

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. 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. The Plaintiff did not complain then that she had been

humiliated or ridiculed or scandalized by the photograph or image.