Applicability of Data Protection Law in Malaysia: Long-Term Residency Threshold

The "Long-Term Residency Threshold" factor in Malaysia pertains to how the Personal Data Protection Act 2010 (PDPA) applies to individuals or entities that maintain a physical presence in Malaysia for a specified duration, specifically 180 days within a calendar year.

Text of Relevant Provisions

Referenced Provision(s):

"For the purposes of subsections (2) and (3), each of the following is to be treated as established in Malaysia: (a) an individual whose physical presence in Malaysia shall not be less than one hundred and eighty days in one calendar year;" Original (Language):"لأغراض الفقرات (2) و (3)، يُعْتَبَر كل من ما يلي مُؤَسَّسًا في ماليزيا: (أ) شخص تكون إقامته الفعلية في ماليزيا لا تقل عن مئة وثمانين يومًا في سنة تقويمية واحدة؛"

Analysis of Provisions

The Long-Term Residency Threshold is integral to determining the applicability of the PDPA. It defines the criteria under which individuals are considered to have an established presence in Malaysia for the purposes of data protection obligations.

Key points from Section 2(4a) include:

• Definition of Establishment: According to the provision, an individual is deemed to be established in Malaysia if they are physically present in Malaysia for not less than one hundred and eighty days in one calendar year. This duration is used to ascertain whether the individual’s data processing activities fall under the jurisdiction of the PDPA.

Analysis of Provision:

• Application to Individuals: This factor allows the PDPA to apply to individuals who, despite not being formally incorporated or engaged in a business entity in Malaysia, maintain a significant physical presence. This ensures that such individuals cannot evade data protection obligations simply by virtue of their non-residential status.
• Context of Data Processing: The provision ties the applicability of the PDPA to a significant physical presence, making it clear that short-term visitors or transient individuals are generally not subject to the Act unless they meet the residency threshold.

Implications

For businesses and individuals:

• Extended Scope: The threshold of 180 days ensures that individuals who spend a substantial amount of time in Malaysia are subject to the data protection regulations. This means that even if an individual is not formally established as a business entity, their extended stay in Malaysia makes them subject to the PDPA if they are involved in data processing.
• Compliance Requirements: Individuals meeting this threshold must adhere to the PDPA’s requirements for processing personal data, including those related to data subject rights and data protection measures.

Examples:

• Applicable: An expatriate working in Malaysia on a long-term assignment who meets the 180-day threshold would need to comply with the PDPA if involved in processing personal data.
• Not Applicable: A business traveler who visits Malaysia for less than 180 days within a year would not be subject to the PDPA based solely on their temporary presence.

This threshold ensures a broad but targeted application of the PDPA, capturing those with a meaningful presence in Malaysia while excluding short-term visitors from the data protection framework.