New Jersey Court Holds
That an Employer Can Be Liable for Employee's Possession of Child
Pornography.
Facts of the Case
In Doe v. XYC Corp., 887 A.2d 1156 (N.J. Super. Ct.
App. Div. 2005), the Superior Court of New Jersey addressed whether
an employer, who is aware of its employee's use of his workplace
computer to access pornography, has a duty to investigate that
activity and take prompt and effective remedial action to prevent
potential harm to third parties. In Doe, an employee of XYC Corp. ("XYC")
used his work computer and internet connection to send nude pictures
of his 10-year-old step-daughter to a pornographic web site. Prior
to the employee's arrest for possession of child pornography,
co-workers had complained to upper-management at XYC on several
occasions concerning the employee viewing pornographic images on his
workplace computer. After one such complaint, a XYC supervisor
obtained the domain names of the websites that the employee had
visited and recognized several domain names as pornographic
websites. In fact, several web sites that the employee had visited
even referred to children and young teenagers in their domain names.
However, the supervisor did not visit any of these web sites or
investigate further. The supervisor then met with the employee and
instructed him to cease the inappropriate computer usage. After this
meeting, the employee appeared to stop his activities for a brief
period of time. However, the same supervisor later noticed that the
employee had started visiting pornographic web sites again. The XYC
supervisor did not inform anyone at XYC about the employee's resumed
activities until after the employee's arrest in June 2001. After the
employee's arrest, the mother of the 10-year-old child sued XYC,
alleging that XYC had acted negligently in failing to discipline the
employee or report the employee's suspicious activity to law
enforcement authorities.
Throughout the employee's employment, XYC had an
employee e-mail policy in place. The XYC policy stated that e-mails
were the property of the company and were not confidential. Under
the policy, XYC reserved the right to "review, audit, access, and
disclose all messages created, received, and sent over the e-mail
system." In addition, the policy stated that anyone with knowledge
of the misuse of the internet for other than business purposes must
report the misuse to the personnel department.
The Court's Opinion
The New Jersey Superior Court's Appellate Division
held that XYC had acted negligently in failing to investigate and
take prompt, remedial action to stop the employee's improper
computer usage. In reaching this decision, the court focused on the
following issues:
1. Whether XYC had the ability to monitor the
employee's use of the internet on his office computer;
2. Whether XYC had the right to monitor the
employee's activities;
3. Whether XYC knew or should have known that the
employee was using the office computer to view child pornography;
and
4. Whether XYC had a duty to act to prevent the
employee from continuing his activities.
The court answered each issue in the affirmative.
The court first noted that XYC admitted that it could have installed
software that could monitor its employees' computer usage. The fact
that XYC management had conducted a limited investigation into the
domain names of the websites that the employee had visited also
demonstrated that XYC had the ability to monitor his internet
activities. Next, the court stated that the promulgation and
distribution of the XYC e-mail policy to all employees demonstrated
that the employee had no expectation of privacy in e-mail
communication from his office computer. Therefore, the court held
that XYC had the right to monitor the employee's activities.
The court then addressed whether XYC through its
management and supervisors was on notice of the employee's
inappropriate computer use. The evidence showed that XYC received
numerous complaints concerning the employee's internet activities
and had actual knowledge of several pornographic domain names that
the employee had visited. Therefore, the court held that XYC was on
notice of the employee's improper and illegal computer use. Finally,
the court held that XYC did have a duty to act upon its knowledge of
the employee's illegal activity by either terminating the employee
or notifying the police. The court noted that public policy both
against child pornography and in favor of exposing crime supported a
finding that the employer had a duty to act. The court held that an
employer must exercise reasonable care to prevent its employees from
using the employer's property intentionally to harm third parties.
Implications for Employers
Employers must ensure that they have an effective
internet policy in place and that the policy is actually enforced.
An effective internet policy should inform employees that e-mail and
other electronic communications including internet usage are not
confidential and remain the property of the employer. The policy
should state that the employer reserves the right to monitor the
internet usage of all employees. Employers should then distribute
the policy to all employees and require a signed acknowledgement
that the employee has received a copy of the policy. Employers
should provide adequate training both to employees and supervisors
concerning the internet policy and the potential consequences for
violations of it.
With an effective internet policy in place,
employers should investigate any complaint or other information
regarding an employee's improper or illegal use of the employer's
computer system and internet service. If an investigation does
produce evidence of improper or illegal internet usage, the employer
should take immediate remedial action. Appropriate remedial action
for improper internet use can take the form of internal discipline
such as written warnings, suspensions, or terminations. However, if
the employee's internet activity is illegal, rather than just
improper, the employer should notify the appropriate law enforcement
authorities in addition to any internal discipline administered to
the employee.