Mandatory reporting of child porn spreads

Manitoba, Nova Scotia, Ontario and Alberta clamp down — more could follow
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 05/04/2010

Across the country, mandatory reporting of child pornography is becoming more of a reality, with implications for employers and workplace policies and practices.

In April 2009, Manitoba enacted legislation that required anyone who finds child pornography to report it to Cybertip.ca, run by the Canadian Centre for Child Protection, or they could face a fine of up to $50,000 and two years in prison. Just last month, Nova Scotia passed similar legislation, requiring the mandatory reporting of child pornography or a potential fine of up to $2,000 or six months in prison.

And two other provinces have legislation in the works, with Ontario’s Bill 37 receiving royal assent in December 2009 — and expected to come into force by January 2011 — and Alberta’s Bill 202 having its second reading in March 2010.

“There was never any question the employers didn’t want to report; they just didn’t know how to report,” said Heather Forsyth, a member of Alberta’s legislative assembly who brought forward the private member’s bill. “Now it clearly will be defined: ‘This is who you report to if you come across child pornography.’”

While there are slight variations among the provinces, the basics are the same: Report child pornography directly or face fines or imprisonment.

“The legislation itself makes it mandatory for anyone, regardless of who you are,” said David Canton, a lawyer at Harrison Pensa in London, Ont. “To the extent an individual is an employee and stumbles across something like that through the course of their work, they are obligated to report that.”

There are a couple of noteworthy issues for employers, he said. For one, the obligation is on the individual, so it’s not good enough if a worker reports the matter to a superior. And secondly, any director, officer or employee of a corporation who “authorizes, permits or concurs in a contravention of an offence,” meaning they don’t report it, is also liable.

“From a corporate perspective, first of all, you want your employees to know about it because you don’t want your employees getting into trouble for this,” said Canton. “And, second of all, the liability can go up the chain of command within the corporation.”

Although employers are not required to search for pornography, given that the reporting requirements are broadly applied to “a person,” it’s quite an onerous requirement, said Caroline Richard, a partner at the law firm Bird Richard in Ottawa.

“Failure to report does expose a company or any other person to fines,” she said.

Employers should revise policies to state no worker can have any kind of pornography on the work station and if such material is found on his computer, he could be investigated and disciplined, up to and including discharge, she said.

“The employer would have a right to discipline if such material is found and it’s proven that it was the particular employee who put it on the computer,” said Richard.

And if a worker was ever to claim misunderstanding of the policy, “you’re providing yourself with a safeguard against this sort of argument that the employees weren’t aware, they didn’t understand, they weren’t trained properly,” she said.

An employer policy that simply says, “Here’s this law, abide by it” wouldn’t hurt, said Canton.

The legislation in each of the provinces also safeguards those who are obliged to report suspected child pornography by saying an action cannot be brought against a person who provided information to the authorities. It is also an offence to disclose the identity of, or retaliate against, an informant.

“There was some concern if you were an employee and you spotted something at work, someone on the computer, suspicious, that any repercussions could be held against you, so we specifically wrote in the legislation that this protects employees,” said Sherri Aikenhead, director of communications at the Government of Nova Scotia. “The police felt that that sometimes can be an issue.”

These types of cases have been on the rise, she said, with Internet child exploitation teams at the RCMP reporting complaints about child pornography at 54 in 2006 and 99 in 2008, in Nova Scotia.

There’s a potential this legislation will go Canada-wide as this is an issue that impacts all workplaces, just like violence in the workplace, said Richard.

For Ontario, it’s not clear whether there will be advance notice as to when the bill comes into force but, given the seriousness of the issue, the government might not delay implementation, she said.

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