Illegal downloads in the workplace – should employers be worried about liability?

Earlier this month, an Australian Federal Court Judge ordered that several Australian internet service providers disclose the identities of thousands who illegally downloaded Hollywood blockbuster Dallas Buyers Club. Around 4700 culprits could have their online accounts frozen and be ordered to pay compensation to Voltage Pictures, the studio behind the film.

Voltage Pictures vice president Michael Wickstrom reportedly said that the studio was considering taking similar action in New Zealand.

But who is liable if illegal downloading occurs in the workplace? 

HRM spoke to Sarah Cates, senior associate at Cullen – The Employment Law Firm, about the potential outcome if an employee is caught downloading similar content from their work computer.

“Under the doctrine of ‘vicarious liability’, an employee is the agent of their employer, which means an employer can be held legally responsible for wrongful acts committed by an employee in the course of their employment – even if that act is expressly prohibited by the employer,” Cates explained. “An employer could be liable for computer crimes committed by an employee under the Films, Videos and Publications Classification Act 1993, the Copyright Act 1993 and the Crimes Act 1961.”
 
Although an employee’s breach of workplace internet policy will not protect an employer from liability, Cates emphasised the importance of having such policies in place to prevent, minimise and address misuse of the internet, including illegal downloads.

She recommended that employers develop sound policies regarding employee internet usage and obtain employees’ written acknowledgment of the policies before offering them internet access or e-mail accounts.

Cates suggested that the policies should outline:

·         the various business purposes to be achieved by granting employees internet access;
·         the bounds of permitted ‘personal use’ and ‘prohibited use’;
·         that the employer can monitor internet usage;
·         that disciplinary action may result from any breach of the policy or other misuse of the internet up to an including the employee’s dismissal.

She also pointed out that a good workplace internet policy is beneficial for both parties, as it clarifies the employer’s expectations in relation to internet usage, and can be used to address other problematic or undesirable internet usage, such as time wasting.