E-health personal data privacy : a comparative study of Malaysian and Australian laws

Abstract

Health data, which is one of the most sensitive data, requires adequate protection to ensure overwhelming participation of the people in e-health. The thesis analyses the Malaysian Constitution and relevant legislation on the e-health data privacy and their adequacy. They are Telemedicine Act 1997, the Medical Act 1971, the Communications and Multimedia Act 1998, the Digital Signature Act 1997, the Computer Crimes Act 1997 and the Insurance Act 1996. The common law has also been analysed to see whether the constitutional and legislative gaps can be filled with the common law. The discussion of the laws of Australia on e-health data privacy is an attempt of comparison with Malaysian laws and where necessary, to suggest improvement and amendments into Malaysian law. The Islamic law on right to privacy is also discussed to address the position of right to data privacy in Islam and to recommend it in formulating laws on e-health data privacy. The study reveals the need for a liberal interpretation of Articles 5 and 8 of the Federal Constitution. Though there are statutory provisions on privacy, only a limited e-health data privacy protection is available. Certain common law principles allow some level of protection even though it may be difficult to prove violation of privacy under them. The draft Bills on personal data protection specify special protection for sensitive data that includes e-health data. As the implementation of this Bill is delayed, the current legislative framework is not seen to be adequate in Malaysia to protect the e-health data privacy. The passing of new legislation is imperative and the Australian laws can be of good resource to look into.