Superior Court of New Jersey Denies Motion for Summary Judgment, Finds Employer could be Liable for Employee’s Use of Work Computer to Send and View Child Pornography

In a recent appeal, challenging a motion for summary judgment which had initially been granted, the Superior Court of New Jersey reversed the motion finding an employer can potentially be held liable where an employee uses a work computer for child pornography purposes. The employee in question had photographed and videotaped his ten-year old step-daughter nude, subsequently posting the material on a child pornography site via his workplace computer. The employer has a policy in place, which all employees must agree to as part of their employment agreement, stating e-mails are the property of the employer and not the employees, employees are subject to the monitoring of their work computers, and employees must report any unacceptable workplace activity witnessed on a co-workers computer. The employee in question had been reported numerous times to superiors for allegedly viewing pornographic material on his computer during work hours. Twice, supervisors inspected the employee’s computer, examining the list of recently visited websites and observing that some were pornographic in nature. Although the sites were never opened by supervisors, the name of at least one site indicated it was potentially child pornography. Although the employer’s policy allowed for the dismissal of an employee in breach of the agreement, the employee in question was merely reprimanded on both occasions.

A lawsuit was filed by the victim’s mother, alleging negligence of the employer due to its failure to adequately monitor the employee’s computer. To be found liable for negligence, the Plaintiff must prove a duty exists on the part of the employer to monitor the employee’s computer, that duty was breached, and that breach of duty caused the Plaintiff’s injuries. In the motion for summary judgment filed by the employer and initially granted, the Court held the final element of negligence could not be met because the sexual abuse of the victim would have occurred regardless of whether the employer had monitored the computer. On appeal, however, the Superior Court reversed the motion and remanded the case for trial. The Court found the employer had both the ability and the right to monitor the employee’s work computer. The employer had knowledge of the employee’s past access of pornographic websites, giving rise to a duty to prevent the possible harm to others. Although the employee potentially could have used another computer had he not been able to post the pornography via his workspace, the Court held the issue of cause as one for a jury to decide and remanded the case accordingly. The Court’s ruling illustrates an employer’s potential liability for an employee’s criminal acts, within the scope of business.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.