Employers Obligated to Report Child Porn Found on Their Computer Systems

In February 2009, I read an article by Dan Michaluk from Hicks Morley Hamilton Stewart Storie LLP on the passage of Ontario Bill 37, the Child Pornography Reporting Act, which will amend the Child and Family Services Act. This legislation will require Ontario organizations, among others, who find child pornography on their computer systems to report it to the authorities, or face serious penalties. However, to this date the Bill has not received proclamation to come into force.

Note that Manitoba has already enacted legislation that makes it mandatory to report child pornography and Alberta has just tabled a private member’s bill to that effect.

Why am I thinking about this now? On March 11, 2010, the Financial Post’s Legal Post reported that law firm Bird Richard believes that the government will proclaim the law in the near future, and that employers should prepare by having a workplace policy that deals with reporting obligations under this Act.

Meaning, employment lawyers should also familiarize themselves with the law to assist their clients with this very onerous reporting obligation.

The obligations found in the law are quite heavy, and extend to any person and employees as well. A person must report “directly”, which means a person cannot rely on another to report. In the context of employment, if an employee finds child pornography on any computer in the workplace, they have an obligation to report it to the authorities and cannot rely on the employer’s reporting obligations.

In addition, employers will not be able to take any reprisal action against that employee.

An important point to note is that nothing in the law requires or authorizes a person to seek out child pornography on company computers. As a result, employers are not required to take proactive action to monitor or search employees’ computers to find out if they could have child porn on any of the computers.

Failure to report information on child pornography is an offence, and a conviction will lead to a fine of up to $50,000 and/or imprisonment for not more than two years.

Manitoba rules

Under the Manitoba Child and Family Services Act , all Manitobans are required to report to www.cybertip.ca any form of child pornography. Cybertip.ca will forward the information to Child and Family Services and law enforcement so they can coordinate investigations into the allegation and ensure children are protected from abuse.

In Manitoba, a person who suspects child pornography, including online content, books, photographs and other audio and visual material, must promptly report the information.

Similar to Ontario, no person is required or authorized to seek out child pornography. It is also illegal to retaliate against an informant and the police will have to advise an employer when an employee having access to children in the workplace is charged with a related offence.

Penalties for violating the provisions of the act include a maximum fine of $50,000 and/or imprisonment of not more than 24 months.

Need for workplace policy and procedures

With the recent news of 35 charged in an Ontario child porn bust and intensified investigation and expected arrests, organizations should take heed and get prepared. Now is the time; an employer policy is a way for workplaces to protect themselves from liability. The child porn reporting policy should be clearly communicated and consistently applied. Remember that employment policies are not effective if they are not followed.

The policy should include explicit rules against downloading or emailing pornographic or other offensive materials. This policy should also indicate the actions employers are required to take if they discover child pornography on an employee’s computer. How to report and to whom, including how an employee will inform the employer that as a person, he or she reported to the authority that child pornography can be found on a computer in the workplace.

When the law comes into force in Ontario, I wonder if the Regulations will prescribe reporting child crime abuse online at www.cybertip.ca. The tipline is owned and operated by the Canadian Centre for Child Protection. According to the Canadian Centre for Child Protection, since Cybertip.ca was launched, it has received close to 35,000 reports resulting in thousands of websites being shut down, at least 45 arrests and the removal of children from abusive environments.

Like Martha Stewart says “it’s a good thing!”