One company found out the hard way that failing to investigate the activities of an employee whose company computer contained pornography can lead to legal liability. Here’s a look at that case and what it could mean for you.
The facts of the 2005 New Jersey case Jane Doe v. XYC Corp. are troubling, to say the least. Through the complaints of co-workers, the defendant employer became aware that one of its employees was using his company computer to visit pornographic websites.
The employer had its IT workers conduct a limited inspection of the employee’s computer and they confirmed that employee was visiting pornographic websites (although the inspection did not reveal child pornography). On at least two occasions, supervisors verbally reprimanded the employee for viewing pornography while at work.
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From there the situation got much worse. The employee was arrested and convicted of photographing and videotaping his 10-year-old stepdaughter in nude and partially clad poses. It turned out that he had used his work computer to share three of those images over the Internet, and that he had downloaded at least 100 other child pornography photos onto his work computer.
After dismissing the employee, the employer was sued by the victim’s mother, who claimed the company was negligent for failing to investigate and report to authorities that the employee was viewing, downloading, and distributing child porn on his work computer. She claimed that, had the employer taken decisive action, the employee might never have victimized her daughter.
A New Jersey trial court dismissed the suit, finding that while the employer knew the employee had been viewing pornography, it did not know that he had been viewing and distributing child pornography. The court held that the company had acted prudently by instructing the employee to stop his porn-surfing activities, and that the employer had no duty to monitor the employee’s private communications.
The New Jersey Appellate Division disagreed. In a remarkable decision, the appeals panel held that the employer’s knowledge of the employee’s use of his office computer to view pornographic materials imposed a “duty to investigate further.” Such an investigation, the court said, “would have readily uncovered the full scope of Employee’s activities” including the use of his office computer to view child pornography.
And because viewing child pornography is a crime under both federal and state statutes, the employer’s knowledge of that activity would have triggered “a duty to report Employee’s activities to the proper authorities and to take effective internal action to stop those activities, whether by termination or some less drastic remedy,” the appeals court said.
Although the ruling applies only to employers in New Jersey, it is one of the first cases to deal with the issue, and courts in other states could very well adopt its reasoning. In addition, the decision could be read broadly to cover other illegal activities by employees using their employers’ computers that cause physical, financial, or other harm to third parties.
“For instance, e-mail communications that harass third parties and cause emotional trauma may meet the requisite harm requirement,” Jamila Johnson wrote in the Shidler Journal of Law, Commerce & Technology. “Another possibility could be situations where an employee is blogging at work, providing incorrect medical advice or encouraging a minor to do something illegal.”
And the implications of the ruling are significant for all employers, according to an article on the website of the business law firm of Smith, Gambrell, & Russell, LLP.
“At a minimum, this case teaches that employees found accessing, viewing or transmitting images of child pornography via the company’s Internet system should be reported immediately to the proper authorities to avoid liability on the part of the employer,” the article states. “Further, while it may be neither practical nor reasonable to expect around-the-clock monitoring of every employee’s Web activities, defending your company against third-party claims will require a showing that the company has been proactive in taking measures to ensure its systems are being used only for legitimate purposes.
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“The Doe case not only highlights the need for employers to implement effective ‘appropriate use’ policies, but also reinforces the notion that employers must consistently follow through on those policies, taking effective, meaningful action as warranted.”
Tomorrow we’ll delve further into the issue of employer liability for child pornography, and take a look at policies that can help shield you from liability for harm caused by employee child pornography or other contraband.