KUALA LUMPUR: The law protects children not only against physical abuse, but also non-physical forms of assault and inappropriate acts.
These include repeated contact with a child, exposing them to danger or behaving or speaking in a sexual way.
However, the Child Act and Sexual Offences Against Children Act do not specifically criminalise the recording of children, but it can be a crime under certain circumstances.
These were the views of lawyers on the case of the 24-year-old school bus driver who was detained for allegedly filming primary school pupils and referring to them as his "crushes".
Lawyer Adi Zulkarnain Zulkafli said based on the videos, particularly one depicting the driver watching a girl asleep on a bus seat, his actions constitute an act of non-physical assault.
He said Section 15(a) (iii) of the Sexual Offences Against Children Act reads "repeatedly or constantly follows or watches or contacts a child by any means".
"This child may be the same one in other videos. If this is the same child, then it is a criminal offence under the Act.
"The video being shown to the public is also inappropriate as children are protected under Section 15 of the Child Act. Any pictures of them are prohibited from being published through any electronic medium," he said.
"So, if adults do not even understand these laws, they have to be made aware and told what they are doing is wrong and not normal.
"Parents, too, need to be aware, as in the era of content creation, creators are everywhere and they can accidentally film a child, who is not the subject of the content.
"The problem is when a child is the subject of the content."
Adi Zulkarnain said he has handled many cases of children selling sexual content on social media.
"These children get a 'high' when they earn money from the sale of illicit content.
"The government and the authorities should look into this," he said.
Meanwhile, lawyer Datuk Seri Rajan Navaratnam said the bus driver could be held under Section 31 of the Child Act which reads any person who exposes a child to danger, defined as a person below the age of 18, commits an offence and can be fined not more than RM50,000 or jailed a maximum of 20 years or both.
He said Section 15 of the Sexual Offences Against Children Act states that a person is said to cause non-physical sexual assault on a child if he utters any word or makes gestures in relation to the child for sexual purposes.
The person can be jailed for up to 10 years, fined a maximum of RM20,000 or both.
"In this regard, the courts would consider the words uttered, the nature of gestures and other circumstances to determine the conduct of the accused.
Section 16 of the same Act also provides that a person in a relationship of trust, and this includes persons who are entrusted with a child under their care, supervision or authority for valuable consideration, can be liable for offences against a child with imprisonment for a term not exceeding five years and shall also be punished with whipping of not less than two strokes.
Section 509 of the Penal Code also provides that anyone who records a person and shares the same without that person's consent or to intrude a person's privacy is said to commit an offence and can be liable for a term up may extend to five years or be fined or both.
"A civil action can be commenced for such an act against the person concerned," he said.
Rajan said there was also Section 211 of the Communications and Multimedia Act 1998, which prohibits offensive content and Section 233 which makes it an offence to use network facilities improperly.
Another lawyer, Foong Cheng Leong, however, pointed out that the Child Act and Sexual Offences Against Children Act do not specifically criminalise the recording of children, because it is only in specific circumstances that it becomes a crime.
"For example, the latter act provides that any communication for sexual purposes is an offence under that law," he said.
"In other words, it is not an offence to record other children especially in a public place.
"Making it an offence would be against public interest as it would be difficult to filter out any children in a photo or video taken by the public — especially when recording devices are accessible by all.
It was reported that the school bus driver, who uploaded a video of a primary school pupil, referring to the student as his "crush" was remanded in Batu Pahat, Johor for five days starting Friday for investigation under Section 15(a)(III) of the Sexual Offenses Against Children Act 2017 and Section 15(2) of the Child Act 2001.