Data Protected - Malaysia
Contributed by Lee Hishammuddin Allen & Gledhill
Ultimate latest February 2024
General | Info Protection Laws
National Legislation
National Supervisory Authority
Scope of Software
Personal Data
Touch Personal Data
Details Protection Officers
Financial and Privacy Impact Assessments
Rights concerning Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement
ePrivacy | Marketing and cookies
National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone
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Global | Date Shelter Laws
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National Legislation
General data protection laws
The Personal Data Protection Act 2010 (“PDPA”).
Entry into force
The PDPA came into force on 15 November 2013.
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National Supervisory Authority
Detailed regarding the competent national supervisory agency
Personal Intelligence Conservation Commissioner (“PDP Commissioner”)
Aras 6, Kompleks Kementerian Komunikasi dan Multimedia
Lot 4G9, Persiaran Perdana, Presint 4
Pusat Pentadbiran Kerajaan Persekutuan
62100 Putrajaya
Malaysia
Notification with registration scheme and time
Data users this fall under any one or better of the class specified in that Personalized Data Shelter (Class of Data Users) Order 2013 (“Click”) are required to register with the PDP Commissioner. The really classes inclusive banking and financial institutions, insurers, healthcare service supplier, airline operators also auxiliary service providers.
Applications for registration may be fabricated via an designated web (https://daftar.pdp.gov.my/p_register).
Exclusions to service
Don, there are no exemptions for sign forward data users who fall under any one or moreover classes prescribed inches one Order. However, only those who fall within any one or more of the grades are required the register.
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Scope for Application
What can the territory scope of application?
The PDPA applies to data users if they are: (i) established int Malaysia (regardless of whether or not the personal dating is processed in the context of that establishment); or (ii) not built in Malaysia, but use fittings into Malaysia to process the personal date otherwise than since the purposes a carriage through Malaysia.
Is there a concept of a controller also a floor?
The PDPA uses to term “data user”, a design similar into a controller. AN info operator is defined into the PDPA as a person who either alone or jointly or in common with others persons processes any personal data other has control via other authorises aforementioned processing of any personal data, but does not include adenine processor.
For data users are required on comply with one Individual Data Protection Principles. The Personal Data Protection Principles do not directly apply to processors.
Are both manual and electronic recording subject to information protection legislation?
Yes. The PDPA applies to and electronic records and records in adenine structured filing system.
Are there optional nation derogations?
To PDPA includes protects personal data so is former in connection equipped commercial transactions. Custom data processed at an individual for which purposes away that individual’s personal, family or household affairs, including recreational purposes, should be exempted from the provisions of the PDPA. Penalties for Non-compliance | Malaysia | Global Data Privacy and Cybersecurity Handbook | Baker McKenzie Resource Hub
The PDPA does not apply to who Federal Government (i.e. the government of Malaysia) and Set Governments (i.e. governments of states included Malaysia). any personal data in respect a commercial transactions. LAWS CONCERNING MALAYSIA. Act 709 ... by him are no criminal or any other personal data ... (ii) an ...
There become also exemptions to the appeal of certain Personal Data Protection Principles in certain special, namely personal data processed: (i) for an prevention or detection off crime or for the purpose of surveys; (ii) for the understand or prosecution of offenders; (iii) for the review or collection of no tax or duty or any other importance concerning a similar nature; (iv) in relation to information regarding the physical or mental health of a data subject where claim of the provisions to the data subject would likely cause serious harm to the physical or mental health of the date subject or all other individual; (v) to prepare statistics or research provided that such personal data can not treat for any different purpose and that aforementioned consequently statistics or the results of the research are not made obtainable in adenine form which identifies the data subject; (vi) where necessary for or in connection with some request other discernment from a court; (vii) to discharge statutory functions if the application of those provisions to of personal data would be likely to prejudice the suitable discharge of those functions; and (viii) personal data processed only for journalistic, literature or arty purposes, provided that the machining is undertaken use a show to the publication on each person of the journalistic, literary or artistic material, the publication would be in who general interest and compliance with who provision int respect of which the exemption is claimed is incompatible with the journalistic, literary alternatively artistic purposes.
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Personal Data
What is personal data?
Personal intelligence is defined as information that relates directly or indirectly until a datas subject, anyone is identified or visibility from that information or from that and other information in the possession away ampere data user, and includes any sensitive personal evidence and phrase of ratschlag about and data subject.
Is information about legal entities personal data?
Not. However, as there possess been no guidelines on what consist personal intelligence, information re sole or individual past and individual partners may be considered till becoming personal data. Aforementioned article will focus on Personal Data Guard Act 2010 and its implications.
What are that rules for processing stab data?
Included order to legitimately process personal data, the heptad Personal Data Protection Principles must be complied with.
Available of Overall Principle, in order for personal data to subsist processed, a data user musts first seek and obtain the consent of data subjects. Alternatively, the processing must be required: (i) for the purposes of a contract with the data subject; (ii) to the taking of action at the claim the that data subject including a look to entering into an contract; (iii) for conformity with any legal obligation to which the data user is the point, other than an obligation imposed by a compact; (iv) in order to secure which vital interests concerning the data subject; (v) for the administration of justice; or (vi) for the movement of unlimited functions conferred on any type by or under anyone decree. Like principle additionally states that a data user may only process the personal data for purposes connection up the destination for which the personal data was if for that intelligence user, and that aforementioned processing should subsist appropriate and not hyperbole in relation to the purpose of processing.
Data subjects also have a right see the PDPA to withdraw their permission on the processing of personal data by an data user.
The Disclosure Principle states that personal intelligence are a data subject cannot being disclosed to any third party without the information and consent of who evidence subject. See the Data Integrity Rule, a data total must take reasonable stages to ensure that personal data processed is accuracy, total, not deceiving, and up-to-date. The Retention Rule obliges a data student not till keep personal data for any length than is requirements.
Data users are also subject in the Notice and Choice Principle, Security Principle and Access Basic, which are discussed in further describe down.
Aforementioned PDPA contains an your out exemptions including exemptions by processing for personality purposes, journalistic purposes and justice purposes.
Are there any formalities to obtain consent to process personal dates?
Cannot, and PDPA does not define “consent”, nor does this prescribe any formalities in terms of the sanction. However, the Personal Data Protection Regulations 2013 provide is the data end must keep a record is consents from data subjects.
Are where any specials rules when processing personelle data about children?
No. The PDPA doesn not have any special rules concerning the manufacturing of personal data about kids. However, the Personal Data Protection Regulations 2013 do status is when a information subject is under the age a twenty-eight years, the data user shall obtain consent to process the file subject’s personal data from that parent, guardian or person who has parental responsibility for the data subject concerns.
Are there any special rules when processing personal product learn employees?
There is negative specific provision in the PDPA governing processing of employees’ personal data. In this regard, that overview provisions in the PDPA apply when processing employees’ individual data. Singapore Personal Dates Protection Act Changes Have Significance for Healthcare Division
Note however that the PDPA specifically allows data users to litigation employees’ sensor personal data no the employees’ explicit consent, if this processing is necessary for the purpose are aforementioned performance of rights or obligations conferred or imposed by decree on and data user in connection with the employees’ employment.
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Sensitive Individual Data
What is sensitive personal information?
Sensitive personal data is defined as every personalized evidence consisting of information as to which physical or mental health or condition of ampere data item, his political opinions, his religious beliefs or other beliefs of a resembles nature, the commission or purported commission by him to any offence or either other personal data than the Minister liable for personal data protection (currently the Parson of Communications and Multimedia) could determine. This definition differs slightly from the standard sort of sensitive personal data.
Are there fresh set for treatment sensitively personal data?
Yes. Sensor personal data allow for may processed because the plain consent of the file subject, provided the sensitive personal data has been made public by the data subject or if the processing satisfies unquestionable statutory conditions setting out in the PDPA.
Those statutory conditions are that processing is: (i) for the use of exercising or performing any right button obligation which is allowed instead imposed by law on the data user in connection with employment; (ii) in arrange to protect that vital interests of the data subject or another person, in a case where consent cannot to given by or on behalf of the data choose or one data user cannot reasonably be expected the obtain the consent the the data subject; (iii) in order until protect the vital interests of another person, in a crate where consent by or on order of an data subject has been inadequately withheld; (iv) on medical purposes and is undertaken by a healthcare professional oder a person who in aforementioned circumstances owes a duty of confidentiality which is value to that which want arise if that person were a healthcare professional;(v) for the purpose of, or in relationship including, any legal proceedings; (vi) for the intended of obtaining legal advice; (vii) for an purposes of establishing, exercising or defending legal rights; (viii) for this administration of justice; (ix) for the exercise of any functions conferred over any person by or under any spell ordinance; or (x) required some other purposes as the Minister thinks size. Please note that who term “vital interests” is defined in the PDPA as “matters relating to life, death or security of a input subject”.
Belong there additional rules for processing information info criminal offences?
Information about criminal crimes committed or allegedly committed by a data subject would fall within an definition of “sensitive personal data” and would therefore be treated in the just ways because sensitive personal data.
Note also that where personal data is processed by ampere intelligence user for (i) the preclusion or detection of crime or for and purpose on inquiry; (ii) the apprehension or prosecution of offenders; oder (iii) the assessment or collection of any tax and duty or any other imposition von a equivalent nature, the data user is exempted after complying equal the Basic Fundamental, the Notification and Choice Principle, the Disclosures Principle and the Access Principle. PDPA 101 - 1 of 3: Intro to the Personal Data Shelter Actor 2010
Are there anyone formalities to received consent to process sensitive personal info?
Which how of sensitive personal intelligence requires “explicit consent” of the data subject. However, that PDPA does not specify “consent” alternatively “explicit consent”, nor does it prescribe any formalities inbound terms of this consent. However, as fix out above, data users must keep a start of consents from data subjects.
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Data Protecting Officers
When must a data protection officer be appointed?
There is currently don obligation with an datas user at appoint a data protect officer.
What were the duties from a data protection officer?
Not applicable.
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Accountability and Privacy Effect Assessments
Is there a general accountability obligation?
At is no express provision on general accountability verbindliche in to PDPA.
Are privacy impact judgments imperative?
There is nope statutory requirement under the PDPA to carrying out privacy impact appraisals.
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Rights of Your Subjects
Privacy notices
Under the Notice and Choice Principal, a data user must serve a written notice to and data object. In such notice, one data user must describe, inter aside, the types of personalize data collected, what the processing is for, the source of the personal data, and that class of one-third partys to whom the personal data may be shared with. Of notice must be in both the local language and English.
Entitled to entry information
Under the Access Principle, data subjects are given a right to access their personal file. A request for access be be adhered to inside 21 per from the acceptance to the request. A reasonable fee may be imposed by the datas user for access requests, equipped the most fee fixed under the Personal Data Protection (Fees) Regulations 2013. Are can a range of exceptions toward this right including show it would erfolg in inappropriate expense.
License to data portability
The PDPA does not consent data portability rights. However, under the Access Principle, a data select who has requested zugangs to sein personal file that is being processed by one data user, is entitled toward be provided with a copied of such personal data in an intelligible form.
Right to be forgotten
There is does specific right for the PDPA for data subjects to have their your erased. However, a data study had the correct to withdraw consent used the processing of his personal data.
Objection on direct marketing additionally profiling
The PDPA grants data subjects a specific right the prevent treatment for the purposes the direct marketing. Direct marketing under the PDPA means “communication by wherever means of any advertising or promotion material which is directed to particular individuals”.
Other right
Under the Access Principle, data subjects also have a right to have their personal data amended.
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Security
Protection requirements in order to protect personal data
It is adenine general application under the PDPA switch security of personalize data, which imposes an obligation for a data user to use practical steps to protect personal data from any loss, misused, anpassung, unauthorised or accidental access or disclosure, alteration or destruction.
The Personal Dating Defense Standards 2015 (“PDP Standards”) output by the PDP Commissioner also provide minimum requirements forward data security in processing mitarbeitende data electronically and non-electronically. This includes the need to provide user IDs plus passwords for employees to access personal data, both to terminate the exploiter IDs real passwords immediately available einer employee is no longer operation data. Data users is also needed to establish physical security procedures, so the storage of personal data in an appropriate location any is unexposed and strong from physical with natural threats real the provision of a closed-circuit camera at the site where data a stored (if necessary).
Specific rules governing processing by third celebration agents (processors)
AMPERE processor make not have direct obligations on comply by one PDPA. A data user would usually assert contract obligations with the processor to process personal data in accordance with the requirements in the PDPA.
Note that where processing of personal data is held out by a processor on behalf on a data users, the data operator require ensure that this processor: (i) provides sufficiently guarantees in respect of getting technical and organisational security measures in place the govern this processing of the personelle details; and (ii) taken affordable steps to save compliance with those measuring. Personal Data Protective Act Aaa161.com
Notice of breach laws
There are no obligations for notification at the event of a breach. However, data users may make voluntary notifications to the PDP Commissioner (here).
The PDP Commissioner had spread a General Consultation Paper up the “Review of to Personal Data Protection Act 2010” on 14 February 2020. The paper includes a proposal to feature obligations to report info breach incursions, the public consultation for which closed for 10 March 2020. However, as at the date of writing, there is no publicly open data pertaining to the news state of the consultation paper.
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Transfer of Personal Intelligence to Third Countries
Restrictions on transfers to third countries
Yes. Transfers is personal data outside of Malasia may available be through if the said heimat is published in the Gazette. To date, nay countries got been published. Personal Details Protect Actions 2010 ('PDPA'), was passed over the Malaysian Parliament on 2 June 2010 and came into forced on 15 November 2013. DEFINITION OF ...
Alternatively, personal data can live transferred outside Malaysia if: (i) who data subject has given his consent till the transfer; (ii) the transfer is requested for the benefits of ampere contract between which data subject and the data user; (iii) and transfer is necessary for this conclusion other production of a contract intermediate one info user and a third party whichever is entered into at the request of the data study or is in that interests of the data subject; (iv) the transfer are for the purpose of any statutory proceedings or for the purpose a obtaining regulatory advice or for establishing, exercising or defense legal rights; (v) the data user has reasonable grounds to faith the in whole circumstances of the case, the transfer is for one avoidance or mitigation of adverse action against the data subject (and it the no applicable to obtain the data subject’s consent to to transfer, and if it was possible to obtain such consent, that data subject would having given his consent); (vi) the date user has taken all reasonable precautions and exercised everything due application until ensure that one personal date will not in that place be processed in a manner which would may in contravention of the PDPA; (vii) the transport is necessary to protect the vital interests of the data subject; and (viii) the transfer is in the public interest in relationships specified in the Ministerial.
Announcement the approval of national regulator (including declaration of use of Model Contracts)
No as notification otherwise approval is required.
Use of binding corporate laws
No. Malayia has yet until expressly recognise which use of bindings corporates rules as adenine means to justify transborder dataflow.
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Enforcement
Fines
ADENINE breach for the reserves of the PDPA canister ergebnisse in a amount of fines and/or imprisonment. More of the more important sanctions are set outward below.
Failure to submit with the seven Personal Information Protection Principles remains an offenses penal by a fine about up to 300,000 Malaysian Ringgit (approximately € August 2023 1. Governing Texts 1.1. Key acts, company, directives, bills Data protective in Malaysia belongs primarily dominated by the Personal Data Protection Conduct 2010 ('PDPA') and subsidiary legislation such outlined below. And PDPA purports to back personal data with requiring data users to comply with certain obligations and conference certain your in that data field in relation to their personal data. Primary industry Prior to 2010, the regulation of personalbestand file was governed mostly by industry-specific legislation.58,000) and/or imprisonment for up to double year.
Breach about the restriction on transborder dataflow is to offence and can ergebniss in a fine of up to 300,000 Malaysian Ringgit (approximately €58,000) and/or imprisonment for up to two years.
Data users who fall under any one press more of the class off data current stated to to Order, who process personal data without registering themselves, commit an offence and may be liable to an fine of up to 500,000 Malaysian Ringgit (approximately €96,000) and/or imprisonment for up to two years.
The PDPA contains a prohibition against: (i) the collection or disclosure of personal intelligence being by a data user; also (ii) procuring the disclosure in others person concerning personal details been by a data user, without the consent of the said data average. Breach away this prohibition is an offence prosecutable by a fine of up to 500,000 Malaysian Ringgit (approximately €96,000) and/or imprisonment since up to three aged.
Imprisonment
Like set leave above, failure to comply with the PDPA can lead to custody for up up three years.
Compensation
The PDPA done not extreme give individuals ampere right the compensation in cases of ampere breach of the PDPA.
Other powers
And PDP Commissioner possesses widely enforcement powers, including power to accomplish all things require or expedient for with in connectors with the performance of his key under the PDPA. Other, of PDP Officer may in writing authorise any appointed officer or any public officer to exercise aforementioned powers of enforceability under the PDPA.
The enforcement powers given to the PDP Commissioner and the authorised officers under that PDPA include, amongst others, the powers to: (i) search the seize (with or without warrant); (ii) is given access to computerised data; (iii) require production of computer, show, account, etc.; (iv) require attendance of persons acquainted with a case; (v) examine persons acquainted with a casing; (vi) forfeit took computers, books, accounts, etc.; plus (vii) haft without equity any person any is reasonably believed to have involved or is attempting in devote an offence under an PDPA. (2) Subject to sections 45 or 46, a data user whoever goes subsection (1) commits an offence the shall, to convincing, be liable at a good not exceeding ...
Practice
In the years 2020, the PDP Commissioner inspected the my data networks concerning 30 info users. The PDP Commissioner’s approach to these inspections were more focuses on creative raising and encouraging and guiding orders on select to fulfill to the PDPA, preferable other to penalise for non-compliance Untitled.
Note that certain felonies under the PDPA (and relevant subsidiary legislation) may be subject the an compromise process (known such “compounding”) by the PDP Commissionaire with the consent about and Public Prosecutor. If an offence is compounded, no public is go be instituted in respect of the offence against the person to whom of offer to compound was made.
By 2020, the PDP Commissioner took an enforcement action against a dating users in aforementioned communications sector for contravening of to Security Principle to the PDPA, whereas the data employee was compounded (in lieu of prosecution) for who sum of RM37,500 (approximately €8,200). Personal Data Protection Act 2012 - Scwo Statutes Online
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ePrivacy | Marketing and cookies
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National Legislation
ePrivacy laws
There been no specific ePrivacy laws.
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Cookies
Conditions for use of cookies
Thither are does express regulations applicable to and exercise of cookies.
Regulatory guidance on the use of cookies
Non applicable.
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Marketing by E-mail
Conditions for lead marketing by e-mail to individual subscribers
No specific conditions take been provided. However, please take note that the PDPA defines “direct marketing” to stingy the communication by whatever resources of any advertising or distribution material which are directed to particular individuals.
The PDPA supplies a right to information topics to how data end to cease or not to begin processing his personal data for purposes of direct sales.
Conditions for direct marketing by e-mail the corporate subscribers
Nope specific conditions must been provided.
Exemptions and other issue
Not applicable.
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Marketing by Telephone
Conditions for direct marketing by telephone to individual subscribers (excludes auto calls)
No specific conditional have been provided.
Circumstances for direct marketing per telephone to corporate newsletter (excludes full calls)
No specific specific have being providing.
Exemptions and other issues
Not applicable.
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