Employers should take note of a change in Pennsylvania law regarding child pornography, soon to take effect, along with a recent state Supreme Court ruling.

The law and the ruling follow a trend by states and the federal government to expand liability, both criminally and civilly, for activities related to child exploitation. The trend requires that employers be vigilant about the potential ramifications for failing to act when notified of employee use of a company computer or network to view child pornography.

Effective September 14, 2009, Pennsylvania law makes it illegal for any person to intentionally view child pornography. The new law results from the amendment of Section 6312(d) of Title 18 of the Pennsylvania Consolidated Statutes, which previously banned only "possession" or "control" of such material. The amendment, which Governor Edward G. Rendell signed into law on July 14, 2009, is a follow-up to the state Supreme Court decision, Commonwealth v. Diodoro, which held that searching for images on the Internet and viewing them on a computer can be considered "controlling"child pornography. 970 A.2d 1100 (Pa 2009)

Increasingly, jurisdictions are placing obligations on employers regarding such activity. Already, seven states require information technology workers to report the discovery of child pornography to law enforcement officials, according to the National Conference of State Legislatures: Arkansas, Illinois, Missouri, North Carolina, Oklahoma, South Carolina, and South Dakota. Failure to report is punishable by fines and possible jail time. Federal law obligates only providers of electronic communication services or remote computing services to report to the National Center for Missing & Exploited Children the apparent sexual exploitation of children under Section 2258A of Title 18 of the U.S. Code.

In late 2005, in a decision that could pave the way for finding employers civilly liable in such cases, the N.J. Appellate Division held that an employer on notice that an employee is using a company computer to access child pornography has a duty to investigate the employee’s activities and take "prompt and effective action to stop the unauthorized activity." In Doe v. XYC Corp., 887 A.2d 1156 (N.J. Super. Ct. App. Div. 2005), the court reversed the summary judgment ruling in favor of the employer, holding that based on the facts and the intent of state and federal laws, the employer had a duty to report the viewing of Web sites that possibly contained child pornography and "take effective internal action to stop those activities, whether by termination or some less drastic remedy." 887 A.2d at 1168-69.

In light of the change in law in Pennsylvania and recent related legal decisions and statutes, it is critical that every employer assess its Internet usage and employee misconduct reporting policies, monitor the changing landscape in child pornography law and related Internet usage, and make necessary policy decisions based on those changes.


 

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