Last modified 20 January 2025

Data Protection in Malaysia

Breach notification in Malaysia

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Law

Data protection laws in Malaysia

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

As part of an ongoing review of the PDPA, the Personal Data Protection Commissioner of the Ministry of Communications and Multimedia Malaysia has issued Public Consultation Paper No. 01/2020 – Review of Personal Data Protection Act 2010 (PC01/2020) dated February 14, 2020 to seek the views and comments of the public on 22 issues set out in PC01/2020, some of which are set out below.

The Personal Data Protection Department (PDP Department) has indicated that, out of the 22 issues, 5 issues have been shortlisted as the key proposed amendments to the PDPA. The amendments to the PDPA, namely the Personal Data Protection (Amendment) Act 2024 (“Amending Act”), were first tabled as a bill in the Malaysian Parliament in July 2024 and subsequently passed by both the Dewan Rakyat (House of Representatives) and the Dewan Negara (Senate) of the Malaysian Parliament on July 16 and 31, 2024 respectively. Such bill has received the Royal Assent and was gazetted as law on October 17, 2024.

On December 19, 2024, the Minister of Digital appointed three dates on which the provisions of the Amending Act would come into force. While the provisions which do not introduce any new obligations onto data users / data controllers (i.e. Section 7, 11, 13, and 14 of the Amending Act) came into force on January 01, 2025, the provisions introducing new requirements such as the appointment of a data protection officer, data breach notification and right of data portability (i.e. Section 6 and 9 of the Amending Act) will come into force on June 01, 2025. The remaining amendments under the Amending Act will come into force on April 01, 2025.

Additionally, the Digital Minister, Gobind Singh Deo, announced that seven (7) guidelines are planned to be issued and / or developed under the PDPA, which are:

Notification of Data Breach Guidelines;
Data Protection Officers Guidelines;
Data Portability Guidelines;
Cross Border Data Transfer Guidelines;
Data Protection Impact Assessment Guidelines;
Privacy by Design Guidelines; and
Automated Decision-Making Guidelines.

To date, the PDP Department has issued five (5) Public Consultation Papers to gather public opinion and feedback – four (4) pertain to the guidelines listed as (i), (ii), (iii) and (iv) above, while one addresses the revision of the Personal Data Protection Standard 2015 (“Standards”) which was published and came into force on December 23, 2015. Notably, the Commissioner of PDP Department has announced that these four guidelines and the revised standards are expected to be released by early 2025, with the remaining three guidelines anticipated to be released in the third quarter of 2025.

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Definitions

Definitions in Malaysia

Definition of personal data

'Personal data' means any information in respect of commercial transactions that is:

Being processed wholly or partly by means of equipment operating automatically in response to instructions given for that purpose;
Recorded with the intention that it should wholly or partly be processed by means of such equipment; or
Recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, and, in each case.

...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.

Personal data includes any sensitive personal data or expression of opinion about the data subject. Personal data 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 or her political opinions, his or her religious beliefs or other beliefs of a similar nature, the commission or alleged commission by him or her of any offense, biometric data, or any other personal data as the Minister of Communications and Multimedia (Minister) may determine by published order. The Amending Act defines “biometric data” as “any personal data resulting from technical processing relating to the physical, physiological or behavioural characteristics of a person”.

Other than the categories of sensitive personal data listed above, the Minister has not published any other types of personal data to be sensitive personal data as of January 02, 2025.

Authority

National data protection authority in Malaysia

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 will 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 will not exceed a term of three years; however, members can be appointed for two successive terms.

The Commissioner's decisions can be appealed through the Personal Data Protection Appeal Tribunal. The following are examples of appealable decisions:

Decisions relating to the registration of data controller 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 of the PDPA; or
The refusal of the Commissioner to conduct or continue an investigation that is based on a complaint under Part VIII of the PDPA.

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

Registration

Registration in Malaysia

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

Communications

A licensee under the Communications and Multimedia Act 1998
A licensee under the Postal Services Act 2012

Banking and financial institutions

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

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

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

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

Transportation

Certain named transportations services providers

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

Direct selling

A licensee under the Direct Sales and Anti-Pyramid Scheme Act 1993

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

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

Utilities

Certain named utilities services providers

Pawnbroker

A licensee under the Pawnbrokers Act 1972

Moneylender

A licensee under the Moneylenders Act 1951

Certificates of registration are valid for at least one year, after which data users must renew registrations and may not continue to process personal data.

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

The Commissioner may designate a body or a data controller as a data user forum for 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 / data controllers must comply with the provisions of the code, and non-compliance violates the PDPA. As of January 02, 2025, the Commissioner has published several codes of practice, including for the banking and financial sector, the aviation sector, the utilities sector, communications sector, the healthcare sector, and the insurance and takaful industry in Malaysia. There is also a general code of practice which applies to classes of data users / data controllers required to be registered as data users / data controllers under the PDPA who are currently not subject to any codes of practice registered by the Commissioner.

Data protection officers

Data protection officers in Malaysia

Currently, Malaysian law does not require that data users / data controllers appoint a data protection officer (“DPO”). However, under the Amending Act, the data controller or data processor is required to appoint one or more DPOs who shall be accountable to the data controller or data processor for the compliance with the PDPA. Such appointment will not discharge the data controller or data processor from all their duties and functions under the PDPA. This requirement will come into force on June 01, 2025.

The Public Consultation Paper No. 02/2024: The Appointment of Data Protection Officer (“PCP No. 02/2024”) issued by the PDP Department on August 19, 2024, proposes that the mandatory DPO appointment requirement applies only to data controllers or data processors that carry out data processing activities on a “large scale”. Multiple factors will be taken into account in determining whether the data processing activities are deemed to be large scale:

the number of data subjects concerned;
the volume of data and / or the range of different data items being processed;
the nature of the data being processed;
the risk posed to the data subject as a result of the data processing activity carried out by the data controller / data processor;
the duration, or permanence, of the data processing activity; and / or
the geographical extent of the data processing activity.

To prevent the DPO role from becoming redundant, it is also proposed that the DPO be allowed to carry out additional job functions beyond their data-specific roles as a DPO. Additionally, it is also essential to note that the PCP No. 02/2024 proposes that a single DPO is allowed to serve multiple entities within the same group of companies for the data controller or data processor.

The DPO guidelines to be issued under the PCP No. 02/2024 are expected to be released by early next year.

Collection and processing

Collection and processing in Malaysia

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

Pursuant to PC01/2020, the Commissioner has sought feedback on its proposal to amend the General Principle provision to add clarity to the data subject's consent, whether it should be in a specific provision and the impact of having a default consent. However, there is no amendment to the General Principle provision under the Amending Act.

Malaysian law contains additional data protection obligations, including, for example, a requirement to notify data subjects regarding the purpose for which their personal data are collected and a requirement to maintain a list of any personal data disclosures to third parties.

The Standards set out the Commission’s minimum requirements for processing personal data. The Standards include the following:

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

However, the Commissioner has issued the Public Consultation Paper No. 04/2024: Personal Data Protection Standards (“PCP No. 04/2024”) on October 01, 2024 to seek feedback from the public on the revision of the above minimum requirements. The proposed revisions under the PCP No. 04/2024 include:

Replacing “black and white” rules (i.e. prescriptive and specific instructions or measures that data controllers must comply with) with requirements that are outcome based;
Removing the differentiation between personal data processed electronically or physically and provide the security standards which applies to personal data generally; and
The role of certification schemes to demonstrate compliance with the Standards.

The revised Standards are expected to be issued by early 2025, likely before April 2025, as the amendments to the Security Principle under the Amending Act are set to come into force on April 01, 2025.

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Transfer

Transfer in Malaysia

Under the PDPA, a data user / data controller may not transfer personal data to jurisdictions outside of Malaysia unless that jurisdiction has been specified by the Minister. However, this provision together with the whitelist regime are removed under the Amending Act.

Pursuant to the Amending Act, the data users / data controllers may transfer any personal data of a data subject out of Malaysia to a country that has substantially similar laws or where the country ensures equivalent levels of protection. These amendments will come into force on April 01, 2025.

Even if these requirements are not satisfied, the cross-border transfer is permissible if it falls within the exceptions to this restriction under the PDPA, including the following:

The data subject has given his or her 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 that would contravene the PDPA; and
The transfer is necessary to protect the data subject’s vital interests.

Additionally, on October 01, 2024, the Commissioner issued the Public Consultation Paper No. 05/2024: Cross Border Personal Data Transfer Guidelines (“PCP No. 05/2024”) to gather public views and feedback on key aspects to be addressed in the proposed guidelines. It is essential to note that the PCP No.05/2024, among others, proposes that the data users / data controllers, who wish to transfer the data out of Malaysia on the ground that the destination has laws that are substantially similar to PDPA or has equivalent levels of protection, must conduct a Transfer Impact Assessment (TIA). The PCP No. 05/2024 also proposes the adoption of cross border transfer mechanisms such as Binding Corporate Rules (BCRs) and Standard Contractual Clauses (SCCs).

The Cross Border Personal Data Transfer Guidelines are expected to be issued by early 2025, likely before April, as the amendments to the provisions on cross-border data transfer under the Amending Act will come into force on April 01, 2025.

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Security

Security in Malaysia

Under the PDPA, data users / data controllers have an obligation to take ‘practical’ steps to protect personal data, and in doing so, must develop and implement a security policy. The Commissioner may also, from time to time, set out security standards with which the data user must comply, and the data user is required to ensure that its data processors comply with these security standards. However, please note that the Amending Act has amended this by imposing the direct obligation on data processors to comply with the Security Principle under the PDPA.

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, modification, unauthorized or accidental access or disclosure, alteration or destruction. However, please note that the Standards are currently under review.

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Breach notification

Breach notification in Malaysia

Currently, there is no requirement under the PDPA for data users / data controllers to notify authorities regarding data breaches in Malaysia. Previously there was a voluntary data breach notification option available on the PDP Department’s website, but the option appears to be no longer available.

However, the Amending Act has introduced a new Section 12B and imposed a mandatory personal data breach notification obligation on data users / data controllers. Under this new provision, a data user / data controller shall notify the Commissioner as soon as possible if he has reason to believe that a personal data breach has occurred. If the personal data breach causes or is likely to cause any significant harm to the data subject, the data user / data controller shall also notify the data subject of such data breach without unnecessary delay. These amendments will come into operation on June 01, 2025.

On August 19, 2024, the Commissioner issued the Public Consultation Paper No. 01/2024: The Implementation of Data Breach Notification (“PCP No. 01/2024”), aiming to gather public views regarding aspects that should be addressed in the proposed Personal Data Protection (Personal Data Breach Notification) Regulations and Guidelines.

The PCP No. 01/2024 proposes that the mandatory data breach notification to the Commissioner under Section 12B be limited to only instances where the personal data breach is likely to cause or has caused “significant harm” and / or where the personal data breach is likely to be or is of a “significant scale”. The manner and form, timeframe and applicable exemptions for data breach notification has also been addressed. Last but not least, although there is no direct obligation on data processor to notify the Commissioner or the affected data subject under the new Section 12B, the PCP No. 01/2024 proposes that the data users / data controllers shall be required to contractually impose an obligation on their data processors to promptly notify them about the data breach.

The Personal Data Breach Notification Guidelines are expected to be issued by early 2025.

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Enforcement

Enforcement in Malaysia

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 systems used in personal data processing and the data controller is required, at all reasonable times, to make the systems available for inspection by the Commissioner or any inspection officer. The Commissioner or the inspection officers may require the production of the following during inspection:

The record of the consent from a data subject maintained in respect of the processing of that data subject's personal data by the data controller;
The record of required written notices issued by the data controller to the data subject;
The list of personal data disclosures to third parties;
The security policy developed and implemented by the data controller;
The record of compliance with data retention requirements;
The record of compliance with data integrity requirements; and
Such other related information which the Commissioner or any inspection officer deems necessary.

Violations of the PDPA and certain provisions of the Personal Data Protection Regulations 2013 are punishable with criminal liability. The prescribed penalties include fines, 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 defense.

There is no express right under the PDPA allowing aggrieved data subjects to pursue a civil claim against data controllers for breaches of the PDPA.

However, under PCP 01/2020, the Commissioner has proposed to introduce a specific provision stating the right of a data subject to commence civil litigation against a data controller.

Electronic marketing

Electronic marketing in Malaysia

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 controller, require the data controller at the end of such period as is reasonable in the circumstances to cease or not to begin processing his or her personal data for direct marketing purposes. 'Direct marketing' means the communication by whatever means of any advertising or marketing material that is directed to particular individuals.

Pursuant to PCP 01/2020, the Commissioner is considering issuing a guideline to data controllers on the mechanism of digital and electronic marketing. The Commissioner has sought feedback on a proposed requirement on data controllers to provide a clear mechanism for data subjects to unsubscribe from online services and the elements to be considered in preparing the guideline on processing personal data in digital and electronic marketing.

The Commissioner is also considering issuing a guideline on the implementation of direct marketing for data controllers. Feedback from the public is sought as to whether a proposed data controller is allowed to make the first direct marketing call to the data subject, the use of the 'opt-out' method, and the important elements to be considered in the preparation of such guideline.

Online privacy

Online privacy in Malaysia

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.