Employer Must Report Employee’s Child Porn Viewing

An employer who knows or should know that an employee is viewing child pornographic sites on a company computer has an obligation to terminate or to discipline the employee and report the employee to law enforcement authorities.

The issue arose in a case where a mother and her minor daughter sued the company where her husband, the step-father of the daughter, worked. The employee had posted on the internet from the company computer nude and semi-nude pictures of his 10-year old step-daughter. The father was subsequently arrested on child pornography charges.

The mother sought damages from the employer, contending that the employer had a duty to terminate her husband’s employment and report him to authorities. Had the employer done so, the mother argued, her daughter’s pictures would not have been put on the internet. The trial court granted summary judgment finding that the employer had no duty to report or fire the employee because he had an expectation of privacy in his actions on his company computer. The court also remanded back to the trial court the question of whether the daughter’s injury was the result of the employer’s breach of duty. The trial court found that the employee had access to the internet via a computer located in his cubicle that was open to other employees. The company also had an e-mail policy that stated that “all messages composed, sent or received on the e-mail system are and remain the property of [defendant]. They are not the private property of any employee.” The company also retained the right to “review, audit, access and disclose all messages created, received or sent over the e-mail system” at the sole discretion of the employer.

The record showed that the employee had been accessing pornographic sites and that his action had been witnessed by other employees who reported his actions to their superiors. The internet service manager for the company also found logs showing the employee’s viewing of pornographic websites. When the manager raised the issue with his superiors, he was told not to access any employee logs ever again.

The appellate court found that the company could have monitored the employee’s actions and, in fact, on two occasions did so. Based on the company’s policies and the open area where the computer was located, the appellate court rejected any right to privacy. “[W]e readily conclude that employee had no legitimate expectation of privacy that would prevent his employer from accessing his computer to determine if he was using it to view adult or child pornography.”

In addition, once the company knew or should have known that the employee was viewing child pornography on the company computer, “defendant had 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 appellate court said.

Jane Doe v. XYC Corporation, Superior Court of New Jersey Appellate Division No. A-2909-04T2, December 27, 2005.