Failing to investigate the activities of an employee whose company computer contains pornography could leave your business wide open to a lawsuit.
A 2005 New Jersey case, Jane Doe v. XYC Corp., involved an employer who became aware that one of its workers was using his company computer to visit pornographic Web sites and share images with fellow employees. After the worker was tried and convicted of videotaping his stepdaughter nude and partially clad, the victim’s mother sued the company, arguing that its negligence in failing to investigate and report that the employee was viewing, downloading, and distributing child porn on his work computer led to the girl’s victimization. The state appellate court held that because viewing child pornography is a federal and state crime, the employer’s knowledge of this activity should have triggered a duty to investigate and report this misconduct to the authorities. Viewing online porn in the workplace is all too common. Consider these facts:
- Approximately 70% of Web traffic to pornographic sites occurs during work hours ( 9:00 a.m. to 5:00 p.m.).
- Some 2.8 billion pornographic e-mails go out every day.
- More than 75% of workers report having visited a pornographic Web site “accidentally” at least once, while 15 % admitted to 10 or more such visits.
Although possession of pornography is not a crime, possession of child pornography — including computer-stored images — is. At least seven states require technicians to report child pornography detected on workplace computers to law enforcement officials or risk facing individual criminal charges.
To remove employees’ expectations of privacy in their computer activities, we’d recommend putting them on notice that the company is free to inspect or monitor such equipment, and requiring employees to sign an acknowledgement that they’ve read and understand this policy.
What’s more, other courts might well rule that the Doe decision could cover other illegal activities by employees using their employers’ computers in ways that cause physical, financial, or other harm to third parties.