Legal

CyberPorn in the Workplace

By David Chin - Solicitor, Jones Staff & Co

A new protocol in the NSW public service is setting the benchmark for acceptable use of the internet.

A major New South Wales Government Agency recently investigated several employees for allegedly using the internet to access pornographic material. These employees allegedly were caught downloading and emailing pornography within the organisation, some of it reportedly depicting acts of bestiality.

This investigation has coincided with a project undertaken by New South Wales public sector to develop a comprehensive set of guidelines to govern employees' access to the internet in all State departments and agencies. The project has led to the development of a protocol for use of the internet which attempts to prohibit "inappropriate" use of the internet, including accessing pornography, while permitting limited personal use.

Many private sector employers, such as banks, have also put in place strict policies regulating employee use of email for private purposes unrelated to their work.

Email, like the telephone, has become a common means of communication both between and within organisations. Like the telephone, employees reasonably expect to be able to use their employers' communication devices, on occasion, for personal purposes. But what purposes are lawful and legitimate when it comes to new technology in the workplace like the internet?

Unfortunately, trying to find the answer to this question in the law is like riding in the back seat of an old clapped-out bomb struggling to find an on-ramp to the information superhighway. Our current laws are intended for old technology, and tend to show their age when we attempt to apply them to human activity in "cyberspace".

Whether or not a person has acted unlawfully in downloading or emailing explicit or "offensive" material from the internet will depend on the application of a myriad of interlocking state and federal censorship and criminal laws.

Currently, under the Commonwealth, State and Territory censorship scheme, State and Territory legislation create offences for the possession of Refused Classification material for the purposes of publication, sale or hire. This material generally consists of "publications", "films", and "computer games" that have been categorised as "Refused Classification" by the Office of Film and Literature Classification.

The problem with these existing censorship offences is their apparent focus on regulating the distribution of physical objects or "things". For example, the definition of "film" focuses on the physical articles on which a recording is stored, such as films, slides and video tapes. If, say, a video file is downloaded onto a computer hard disk then this may come within the legal definition of film.

At the present time, only Victoria, Western Australia and the Northern Territory have censorship legislation specifically prohibiting persons from using the internet to spread "objectionable material".

In recognition of this unsatisfactory situation the Commonwealth Government on 21 April 1999 introduced the Broadcasting Services Amendment (Online Services) Bill 1999. If passed, this proposed legislation will regulate the internet industry through a complaints system whereby the Australian Broadcasting Authority can issue notices to internet service providers to take down offensive material in response to complaints from members of the public.

However, it will be left to the States and Territories to enact new laws creating offenses for the publication and transmission of objectionable material by end-users which would include employees in the workplace.

There are other offences that may arise separately under the relevant Crimes Act of a State and of the Commonwealth. Section 578C(2) of the New South Wales Crimes Act creates an offence for publishing an indecent article. But the word "article" is defined to include certain "things" which leaves some doubt as to whether this part of the Crimes Act applies to information distributed over the internet.

Of course, there is also the provision of the NSW Crimes Act which makes it an offence to publish child pornography punishable by imprisonment for five years (s 578C(2A)).

Also, section 85ZE of the federal Crimes Act could be relied upon to prosecute users who transmit "offensive" material or messages through the internet. This section prohibits a person from knowingly or recklessly using a telecommunications service in an offensive or harassing way, the penalty for which is imprisonment for one year.

Despite the uncertainties arising from outdated legislation, it is important to appreciate the risk of infringing the law whenever the internet is used for accessing pornography or offensive material. This risk increases when that material is downloaded onto a particular computer or when it is "delivered" via email. Transforming cyber-porn into a tangible "thing" and transmitting that material through cyberspace is conduct which is more likely to fall within our current net of censorship and criminal offences.

The consequences for employees using the internet in this way in the workplace are potentially serious. There are added considerations of sexual harassment and sexual discrimination in the workplace. It is difficult to see why sexual harassment by e-mail would be treated by courts and tribunals any differently to harassment by other means such as facsimile, telephone and sexually explicit calendars or other publications.

In practice, the policies and guidelines set down in each individual workplace and which have been agreed to by employers and employees will determine the extent of an employee's contractual right to access the internet for personal purposes. That is why employers have rushed to develop and implement guidelines for the use of email and the internet at work, breach of which will, it is intended, justify some disciplinary action against offending employees, including the ultimate sanction of dismissal.

This also highlights the importance of employees and their unions having a meaningful input into the development of these guidelines. Employees and unions need to guard against draconian guidelines that might, for example, seek to impose penalties for downloading unsolicited material from the internet where an employee has no clue as to the content of that material.

By the same token, employees must be conscious of their obligations under the law, even as the law makes its way ponderously onto that illusive superhighway on-ramp.

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»	Guest Report
»	Sport
»	Trades Hall
»	Piers Watch

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»	Faction Talk Must Be Broader
»	A Bouquet from the Bush
»	Help a Student Pass!

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