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Doe v. XYC Corporation

2005 WL 3527015 (N.J. Super. App. Div. 2005)

EMPLOYER-EMPLOYEE; INTERNET; PORNOGRAPHY—An employer may have liability to a person whose nude pictures are transmitted by an employee over the employer’s office internet connection using the employer’s equipment.

A mother, on behalf of her daughter, sued her husband’s employer, “seeking to hold [the] employer liable for [her] husband’s use of [a] workplace computer to access pornography and send nude photographs of [her] daughter to a child porn site.” The husband worked as an accountant at his employer’s headquarters. His office consisted of a small cubicle located near another accountant’s cubicle as well as near the corner offices of the employer’s Director of Finance and its Controller. In 1998 or 1999, the employer’s then Internet Services Manager told the employer’s Senior Network Administrator that computer log reports revealed that the husband had been visiting pornographic sites. The husband was told to stop the activity but no supervisors were informed. In early 2000, the husband’s immediate supervisor became aware of the situation, but was admonished by another senior employee of the company not to access any employee logs including that of the husband, “ever again.” This continued until finally a group of people, including some information services employees and the husband’s direct supervisor met with the husband and told him to stop the activities. The husband said that he would. The activities ceased for a while, but then several months later, the husband’s immediate supervisor noticed that the activity again started. Nonetheless, he told no one and left on a business trip. He didn’t return until after the husband was arrested on child pornography charges. The employer’s supervisory personnel were aware that the employee had married a woman with a young child. They were not aware that he had taken nude photographs of that child and transmitted them over the internet “from his workplace computer to a child porn site in order to gain access to the site.” Ultimately, the husband “admitted to downloading over 1000 pornographic images while working for [his employer].”

The lower court and the Appellate Division focused on the issue as being “whether or not the employer had a duty, as argued by [the wife and her daughter], to do more than it did with respect to this [] employee and whether there was a standard of conduct to which the duty required this corporate defendant to conform.” The Restatement (Second) of Torts Section 328B (1965) states that “[a] master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if [:] (a) the servant[:] (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master[;] and (b) the master[:] (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.” The lower court found that the employer “had no duty to investigate the private communications of its employees. [Further, it] found that ... using ordinary care [the employee] could not have foreseen the ultimate harm, ‘that result being molestation of the child at home… . Terminating the employee would not have resulted ... in protecting the [minor] plaintiff.” Consequently, it dismissed the case. The mother, on behalf of her daughter, appealed.

The Appellate Division decided to address the following issues: “(1) whether [the employer] had the ability to monitor [its employee’s] use of the Internet on his office computer; (2) assuming [the employer] had the ability to do so, whether it had the right to monitor [the employee’s] activities; (3) whether [the employer] knew, or should have known, that [its employee] was using the office computer to access child pornography; (4) whether [the employer] had a duty to act to prevent [its employee] from continuing his activities; and (5) whether any failure to act on the part of [the employer] proximately caused harm to [the young girl].”

The Appellate Division readily answered that the employer had the capability to monitor or track its employee’s use of the internet on the employee’s work computer. Also, in this case, the employer had a policy that “all messages composed, sent or received on the e-mail system are and remain the property of [the employer]. They are not the private property of any employee.” Further, the employer reserved the right to review all messages at its sole discretion. It also had an internet policy permitting it employees to “access sites, which are of a business nature only.” Its policy permitted discipline, “up to and including discharge” for any employee who violated that policy. Consequently, the Court “readily conclude[d] that [the 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.” Further, based on the facts that developed before the lower court, the employer was clearly on notice of its employee’s activities and “was under a duty to investigate further.” The Appellate Division felt that “[s]uch an investigation would have readily uncovered the full scope of [it employee’s] activities.”

The Appellate Division also needed to determine whether, once the employer knew that its employee was viewing child pornography on the work computer, it had a duty to act, “either by terminating [its employee] or reporting its activities to law enforcement authorities, or both.” It concluded that such an obligation exists. It noted “that it is a crime, both state and federal to possess or view child pornography.” Also, “[g]iven the public policy against child pornography, ..., and the fact that ‘public policy favors the exposure of crime,’ ... [the Appellate Division] agree[d] with [the wife] that [the employer] had a duty to report [its 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.” Lastly, the Appellate Division needed to determine whether the employer’s breach of duty proximately caused harm to the child. It summarized the applicable tort principles, but determined that the answer could not be resolved on the record before it. Therefore, it remanded the matter to the Law Division where the issue of proximately caused harm was to be addressed within the context of the motion for summary judgment.


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