E-Commerce News

VIOLENT VIDEO GAME LAW UNCONSTITUTIONAL

A federal trial court in California recently determined that a California statute that restricts the sale of "violent video games" to minors probably violates the First Amendment.  The court also determined that the law's mandatory labeling requirement is compelled speech, which also likely conflicts with the First Amendment's free speech guarantee.  

We reported on this case back in the fall, noting at that time the constitutional issues it presented.  The law requires video distributors to determine whether any paticular game is "violent" under that term's statutory definition.  If so, the law requires that a conspicuous sticker be placed on the game package.  The court found the statute unconstitutional because the definition of violence is too vague, and not "simple enough for an ordinary person to apply."  This is especially true in a virtual world where no violence actually occurs.

The court's decision is consistent with every court that has considered the issue.  Courts in the Federal Seventh and Eighth Appellate Circuits have ruled that similar ordinances violated the First Amendment, as have at least three other federal district courts.

Of course, the fact that statutory limits on video games are barred by the Constitution does not limit the right of parents to ban their use in homes.  Maybe that's the ultimate solution.

EMPLOYER MUST TAKE ACTION TO STOP EMPLOYEE'S SUSPECTED USE OF INTERNET CHILD PORN

Does an employer have a duty to take action when it suspects an employee is accessing child pornography on websites at work?  The answer is yes, according to a New Jersey Appeals Court.  As a result of the ruling, the employee's wife was permitted to proceed with a negligence claim against the employer, on behalf of her daughter, whose pictures were uploaded by the employee to a child pornography website from the workplace.  The employee was the stepfather of the 10 year old.  Because of the sensitive nature of the case, neither the employee, nor the employer is named in the suit.

The employee, an accountant at the company's headquarters in Somerset County, N.J., worked in a shared cubicle with no doors that opened to a hallway.

The company, identified only as XYC in the suit, monitored computer log reports, and in the process, began noticing that the employee was accessing pornographic sites at work.  Although two information technology employees told the employee to stop, they did not report the behavior to their supervisors.

The employee's supervisor also raised concerns that the employee was accessing pornography and asked IT employees to monitor the employee.  The IT department did monitor for two days, but did not keep a log of the sites visited or open the websites accessed.  None of the sites appeared to be directly related to child pornography.  When the supervisor contacted a top IT official in the company, the supervisor was admonished for accessing computer logs and told never to do it again (apparently the phrase "Shoot the messenger" is contained in the company's mission statement).

In addition, another co-worker complained that the employee was trying to shield his computer screen and quickly minimizing the screen so others could not see what he was accessing.  The co-worker complained to her supervisor, who also witnessed the behavior, and the supervisor complained to others in the company, but no action was taken.

Company officials, who continued to have concerns about the employee's computer usage, checked a list of the sites the employee visited according to his web browser. Even though those checks indicated that the employee was accessing numerous pornography sites, including sites that appeared to contain child pornography, the company did nothing, other than to once again tell the employee to stop.

At some point before his ultimate arrest, the employee began secretly videotaping and photographing his wife's daughter in nude and semi-nude positions at their home.  She was 10 years old at the time.  The child had gone to the employee's "Take Your Daughter to Work Day" and company officials knew he had a young child in his household.

In June 2001, the employee uploaded three pictures of the child to child pornography websites using his company computer. He ultimately admitted to having more than 100 pornographic images on his work computer.  He was arrested in late June 2001, after a search of his work computer and work space, based on a police search warrant, revealed evidence of illegal activity.
 
A search of the workplace found e-mails sent to child pornography websites and to others interested in child pornography.  The police also found photographs of the child in a company dumpster.  The employee was terminated after the search.

The employee's wife filed a negligence lawsuit against XYC in February 2004, seeking damages for care and treatment of the child and alleging that the harms were proximately caused by the company's breach of its duty.  A trial court judge rejected the claim and granted summary judgment to XYC.
 
In reversing the trial court, the appeals court held that the company's e-mail and computer use policy demonstrated clearly that e-mail was the property of the company and that the company had a right to review, audit, access, and disclose any e-mail.  The court added that the employee worked in an open area with no door and a computer screen visible from the hallway.

The gist of the appellate court's holding was 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 take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties."
 
According to the court, the public policy against child pornography favors "exposure of crime."  In the court's view, employers should report an employee's action to the proper authorities and take "effective internal action to stop the activities" whether by terminating the employee or taking some less drastic action.

Disagreeing with XYC's contention that there was no duty because it had no obligation toward the child, the court said that XYC had a duty to make sure its employee did not operate as a risk to others.  The court also said it was not necessary to show that the employee could harm the child, only that the employee could harm anyone.
 
We have consistently advised employers to maintain a computer policy that states that the company computer is company property.  This case demonstrates that, in certain circumstances, the company will be required to exercise the rights such a policy confers.