On appeal from Superior Court of New Jersey, Law Division, Somerset County, L-212-04.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 2005
Before Judges Conley, Weissbard and Sapp-Peterson.
Even the workplace is not free from the scourge of child pornography, as the present case illustrates.
Plaintiff Jane Doe (Jane), on behalf of her minor daughter Jill Doe (Jill), appeals from a summary judgment dismissing her complaint against defendant XYC Corporation which sought to hold defendant responsible for the activities of one of its employees (Employee) who was Jane's husband and the stepfather of Jill. We reverse. We hold that an employer who is on notice that one of its employees is using a workplace computer to access pornography, possibly child pornography, has a duty to investigate the employee's activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties. No privacy interest of the employee stands in the way of this duty on the part of the employer.
The case having been dismissed on summary judgment, we set out the facts, as well as the inferences from the facts, in the light most favorable to plaintiff.*fn1 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
A. EMPLOYEE'S WORKPLACE HISTORY
Defendant employed approximately 250 employees at its headquarters in Somerset County, where Employee was an accountant. His workspace consisted of a small cubicle located along a wall which also contained the cubicle of another accountant, as well as corner offices of defendant's Director of Finance and its Controller, Pamela Martin. The cubicles had no doors and opened into a hallway.
Sometime in 1998 or 1999, Corey Shelton, defendant's former Internet Services Manager, informed George Griesler, defendant's Senior Network Administrator, that he had noted, on reviewing computer log reports, that Employee had been visiting pornographic sites. Griesler and Shelton told Employee to stop the activity but did not inform any of their supervisors. In early 2000, Employee's immediate supervisor, Keith Russinoff, also told Griesler that Employee was visiting inappropriate websites. Russinoff asked Griesler if he could track Employee's Internet usage and Griesler conducted a limited investigation by reviewing computer logs for a day or two and isolating those visited by Employee. Although Griesler had the ability to open those websites, he did not do so, nor did he print out a list of the sites in question. Based on the website titles, Griesler recognized the sites as pornographic, although he only recalled the name of one site, "Sextracker," that Employee had visited several times. Griesler advised Russinoff and Jessica Carroll, defendant's Director of Network and PC Services, about the results of his investigation, but was shortly thereafter admonished by Carroll not to access any employee's logs, including that of Employee, ever again.
Carroll recalled being told by Griesler that Employee's server logs revealed that he was visiting pornographic sites on his office computer, including "bestiality" and "necrophilia" sites. Carroll did not report the matter further or discuss it with Employee, because of a company policy communicated by e-mail to certain management personnel from Kevin O'Connor, Senior Director of Business Information Systems, that prohibited monitoring of or reporting the Internet activities of employees. Violation of the policy could result in a penalty ranging from reprimand to termination.
Around December 2000, another accounting department employee, Mary Ann Carlson, told her manager, Jill Ray, that Employee was acting strangely by shielding his computer screen and quickly minimizing it so that others could not see what he was doing. Carlson saw Employee act in this manner two or three times a day, and discussed his behavior with Ray, who had also seen it at least five times. They surmised that Employee was viewing pornography. Ray eventually discussed the matter with the Manager of Financial Reporting, Suzanne Colon, advising her that she and Carlson were uncomfortable with Employee's conduct. Nevertheless, no action resulted from their complaints.
In February 2001, Carroll herself looked at the sites Employee had been visiting and concluded that they were pornographic. She did not open the sites and did not discuss her findings with anyone or take any action.
In late March 2001, Carlson discussed Employee's computer activities with Russinoff, telling him that while walking past Employee's cubicle she had seen a picture of a woman in a bikini with "very large breasts" in a "sultry pose" on Employee's computer screen. Russinoff acknowledged to Carlson that he had also seen Employee blocking his computer screen. That same month, Russinoff went into Employee's cubicle during lunch when Employee was out, and clicked on the "websites visited" on Employee's computer. Russinoff discovered that Employee had visited "various porn sites" and printed out what was displayed on the screen. The printout identified obvious porn sites ("Big Fat Monkey Blowjobs," "Yahoo Groups - Panties R Us Messages" and "Sleazy Dream Main Page") as well as one that specifically spoke about children: "Teenflirts.org: The Original Non Nude Teen Index." Russinoff, however, did not scroll down the "websites visited" to see what other sites Employee had visited. Russinoff was not sure what the various "Yahoo Groups" sites were and did not open any of the sites to further investigate their contents. Russinoff showed the printout to his boss, Colon, who showed signs of disgust. Later that day, Russinoff met with Colon and her boss, Pamela Martin, "to discuss what to do." They decided that Russinoff should talk to Employee. Russinoff met with Employee on March 6, 2001 and told him that there had been reports of inappropriate computer usage. He told Employee to stop these activities and Employee said he would. Russinoff confirmed his conversation with Employee in an e-mail to Colon and Martin on March 7, 2001. Employee appeared to stop his activities, but in early June 2001, Russinoff saw that he had started again. Nevertheless, he told no one and left on a business trip, not returning until after Employee's arrest on child pornography charges on June 21, 2001.
B. EMPLOYEE'S CONDUCT WITH JILL
Employee and plaintiff were married in October 2000. For about five months prior to his arrest, Employee had been secretly videotaping and photographing Jill at their home in nude and semi-nude positions. Jill was ten years old at the time. Jill had been at defendant's headquarters for Take Your Daughter To Work Day and had attended company outings. As a result, supervisory personnel were aware that defendant had married a woman with a young child.
On June 15, 2001, Employee transmitted three of the clandestinely-taken photos of Jill Doe over the Internet from his workplace computer to a child porn site in order to gain access to the site. Employee later acknowledged that he stored child pornography, including nude photos of Jill Doe, in his workplace computer. He admitted to downloading over 1000 pornographic images while working for defendant. Employee was arrested on June 21, 2001 following a June 19, 2001 search of his work space and work computer based on a search warrant. At that time, his computer showed e-mails being sent to pornographic websites and interactions with others regarding child pornography. Indeed, photographs of Jill found in a dumpster at defendant's headquarters apparently led to his arrest. According to Martin, her search of Employee's desk on June 20 as part of defendant's exit policy*fn2 turned up a folder with seventy downloaded pornographic photos, including ones of young females. In addition, the Prosecutor's Office, in searching Employee's computer, found numerous child pornography images. Specifically, Detective DeBella searched Employee's workplace computer as it was on the day of Employee's arrest and found that Employee had indeed been visiting "Incest Taboo" and "Young Girls Nude 13 to 17 years old."
C. DEFENDANT'S MONITORING CAPABILITIES
Defendant possessed and could have implemented software that would have permitted it to monitor employees' activities on the Internet. Specifically, defendant's Director of Network Services testified that defendant tried Web Trends, the most common such software, which would allow it to monitor where anybody goes on the Internet, and for how long they visit a particular site. Moreover, Griesler, then defendant's Network Administrator, described how readily defendant could have discovered the child pornography sites Employee visited everyday on his work computer. Griesler testified that defendant's network maintained log files by date. Each daily file identified all websites accessed on each particular day. By entering a code, Griesler could have isolated all of Employee's websites visited for any given day for months and could have opened them. Of course, another way to have monitored websites Employee visited, at least recently, would have been to simply open his computer and click on "websites visited," which is what Russinoff did in March 2001.
Defendant recognized its right to monitor employee website activity and e-mails by promulgating and distributing a policy to that effect during the relevant time period. Specifically, the policy made clear that e-mails were the property of defendant and were not confidential. According to that policy, anyone who became aware of the misuse of the Internet for other than business reasons was to report it to Personnel.
Plaintiff's complaint, filed February 6, 2004, was in two counts. The first count alleged, in part, that:
15. XYC Corp. knew or should have known that Employee was using its computer and internet at his workstation to view and download child pornography and to interact with child pornography web sites.
16. Given the nature of the offense, XYC Corp. had a duty to report Employee to the proper authorities for the crimes committed on its ...