It’s all too common for employers to find child pornography on their computer systems. In Ontario, until now, deciding whether or not to report it to the authorities was difficult. It was important to pay heed to the potential for obstruction of justice charges in some circumstances, but for the most part the decision to report was an employer’s to make based on practical and ethical considerations. This has changed with the December 4th passage of Bill 37, the Child Pornography Reporting Act, 2008.
Bill 37 will amend the Child and Family Services Act on a date to be named. The CFSA has long-featured a duty to report a child in need of protection to a children’s aid society. The amendment will mean that any child who is exploited by child pornography will, in most circumstances, be deemed to be in need of protection. The amendment also creates a new duty to report what a person reasonably believes “is” or “might be” child pornography to an entity that will be designated later by regulation. The duty applies to all persons, not just those owning or operating computer systems (such as employers) and those providing risk-related services (such as ISPs and photograph developers). A failure to report will be punishable by fine of not more than $50,000 and/or imprisonment of up to two years.
Thank you to Slaw and John Gregory for first noting this significant amendment.
Addendum. There are a couple twists to this legislation that are worth considering. First, the duty appears to hinge on a subjective belief that the material is (or might be) child pornography, which has a narrowing effect. Second, it appears that an employee of a corporation who discovers child pornography on his or her employer’s system will have an independent duty to report that will not be discharged by his or her employer’s report. As, discussed above, the duty applies broadly, to all “persons.” The legislation also specifies that a person must report “directly,” which means a person cannot rely on another to report. This seems to require multiple reports by all those who handle the offending material.