Zentek Forensics Limited
Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment. The use of the Internet and the proliferation of Illegal Images provides a concerning vulnerability for employers.
If an Illegal image is identified on a company server the employer could be deemed to be vicariously liable. There are two schools of thought here:
1) Internal: Attempt to delete the illegal material, deal with the perpetrator and keep it all ‘in house’
2) External: Report it to the Police, let them deal with the employee and risk business interruption and reputational damage.
The first option would probably be the favoured by most but employers need to understand that it is virtually impossible to remove all traces of the illegal material off the company server. It is equally difficult to prevent a disgruntled, recently dismissed, employee from ‘bad mouthing’ the company and informing others of the potential existence of such material and the unlawful way in which the situation has been handled by the board.
It is much easier to defend and allegation of ‘Possession of Illegal Images’ if the employer notifies the Police in the first instance that it would be if the illegal images was found to still exist on the company server sometime in the future and the it was apparent that the employer had prior knowledge of that existence.
The Obscene Publications Acts of 1959 and 1964 make it an offence to publish any content whose effect will tend “to deprave and corrupt persons who are likely to read, see or hear the matter contained or embodied in it”.
According to the Internet Watch Foundation (an organisation that operates a hotline for reporting illegal images), this “could include images of extreme sexual activity such as bestiality, necrophilia, rape or torture”.
Possession of ‘extreme pornographic images’ was criminalised in England and Wales by the Criminal Justice and Immigration Act 2008. An extreme image is one which is “grossly offensive, disgusting or otherwise of an obscene character” and which portrays any of the following in an explicit and realistic way:
(a) an act which threatens a person’s life,
(b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive),
……and a reasonable person looking at the image would think that any such person or animal was real.”
A similar offence has been proposed for the law of Scotland.
Child Abuse Images
It is an offence to take, permit to be taken, make, possess, show, distribute or advertise indecent images of children in the UK under the Protection of Children Act 1978.
The definition of children includes those under the age of 18 and those giving the impression that they are under 18. Prior to 1st May 2004, the relevant age was 16.
Indecent photographs include ‘pseudo-photographs’ and tracings of photographs. They also include data that can be converted into an indecent photograph.
The maximum penalty for possession of an indecent photograph of a child is five years’ imprisonment. The maximum penalty for making such a photograph is 10 years’ imprisonment.
The IWF provides a more detailed summary of the relevant laws. It uses the term ‘child abuse images’, not child pornography, to reflect the gravity of the images involved.
Pornography and illegal content downloaded by employees
Downloading lawful pornography or illegal content may make an employee liable for summary dismissal. However, this will depend on whether dismissal is an appropriate sanction in the particular circumstances, so it should not be considered a general rule. No dismissal should take place until a full and proper investigation is carried out and fair disciplinary procedures followed.
Any employer should have a suitable internet and e-mail policy. The policy should specifically prohibit downloading pornography and unlawful content and make it clear to employees that this behaviour will not be tolerated and is likely to lead to instant dismissal. Having such a policy not only clarifies the rules for the employee but might also help the employer if there is a question of vicarious liability.
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Zentek Forensics Limited