In the recent viral video case of the couple who harassed MBSA officer sentenced to 14 days jail, it is a foregone conclusion that the couple had broken laws pertaining to obstructing a public officer from conducting her duty. However in the video clip, we can observe that the accused male was persistent in taking a photograph of the public officer, by saying, “Satu gambar sahaja (one picture only)”. Apart from the criminal force that can be seen in trying to take a photograph of the officer, the officer herself desperately tried not to be photographed by the accused male. This is understandable from her perspective as we should have the right of your own image. The question remains what does the Malaysian law say on whether is it illegal to take a picture of someone without permission?
Can someone take a picture of me in public without my consent?
In public spaces without your consent, your image is fair game and you do not have law on your side solely for the reason that it was taken in a public space. The exception is that if there is an expectation of privacy, example in a restroom or private property (not a public space) which photography is specifically prohibited. In addition to that, if you have taken measures to seclude yourself and expect a reasonable degree of privacy in a public space e.g. at the automated teller machine.
What could you do if the photographer insists on taking your picture in a public space?
Unfortunately, you are left with not many options such as shielding yourself or ask nicely for the photograph not to be taken or deleted. You are unable to compel the photographer to delete the photograph because a person is not protected by intellectual property rights unless you are a recognizable celebrity. So the only option is to ask the person politely as you do not have the authority to confiscate the camera as you could be accused of theft or battery. Even a police officer would require a court order to confiscate the camera or you are accused of breaking the law, in which since it is a public space, no law has been broken. Furthermore, since the picture is taken in a public space, the picture itself is intellectual property belonging to the photographer.
Other consideration such as if your image has been taken for commercial reasons and you can be individually recognizable, the photographer is obliged to have your consent/model release. Otherwise, you could request that your image not be used or you could sue. In spite of that, if you are part of the crowd and do not characterize the picture, your chances less than ideal to have control over your image.
In summary, while you may not be breaking the law taking a photograph in a public space, do not resort to force otherwise we might end up spending 14 days in jail for a photograph.
“Satu gambar sahaja (one picture only)”
Does Malaysia law specifically allow someone’s image to be protected? As I am not a law expert myself, lawyers reading this could shed light on this below.