This post concerns a rather jolting case that potentially concerns every business that has at least one employee who uses a computer with internet access. Which, we suspect, includes just about all of them.
In Doe v. XYC Corp. the Appellate Division of New Jersey Superior Court held that the employer of a child pornographer can be liable to the pornographer's victims. The employer discovered that Doe was visiting a variety of pornographic web sites from his office computer. The employer conducted a limited investigation, confronted Doe, and demanded that he stop, which he apparently did for a while. But XYC's investigation failed to discover that some of the sites Doe visited featured children. Eventually Doe was criminally charged with uploading to the internet –from his office computer — nude and semi-nude pictures of his ten year old daughter. The court said that once XYC discovered Doe's use of an office computer to visit pornographic web sites in general, it had a duty to conduct a thorough investigation and notify the authorities of possible criminal activity because of the strong public policy to protect children from sexual predators.
The irony in this unhappy situation is that the employer tried to do the right thing by investigating Doe's web surfing activities when it became suspicious of him. The court, however, said that its efforts did not go far enough. Doe v. XYC Corp. is an eyebrow-raising decision with unusual facts. Nonetheless, the e-mails that daily travel the internet suggest that many businesses have employees who are visiting the kinds of web sites that could create unforeseeable liability. New Jersey businesses should see the court's decision as a warning shot across the bow. The court is telling us just how seriously it views the responsibility of employers to protect children from abuse at the hands of their employees.