Liability of Employers for Employee's Illegal File Sharing

Most people, whether or not employers or employees, will be aware that there is now new copyright law intended to curb illegal file sharing.  What many employers have not yet realised is that they could be penalised by the actions of their employees. Employers who rely on significant use of computer systems need to have an appropriate policy in place dealing with employee computer use. A policy could be important not only from the point of view of ensuring that employees know what is expected of them but the existence or not of a policy and the content of any policy could be important in the employer establishing a defence if they are prosecuted or run the risk of losing their internet connection.

The new law makes it illegal to participate in file sharing through peer to peer applications and networks. Where the illegal action is taken by an employee using their employer's system, it will be the employer who may ultimately face a fine (up to $15K) and even the loss of internet access.

In times where "me" generations consider that they have rights but few obligations, including the right to access the internet whenever they choose and to download whatever they choose, there is a real risk for employers.

Accordingly:

• Employers need to ensure that they clearly define what is and is not permissible by employees;
• The best way to do this is to have a computer policy that sets everything out clearly;
• Every new employee should be made aware of the policy and be advised to read it;
• The policy should extend to all computer use, including by remote access and the extent to which employees may attach devices to the computer system, and all means of communication including telephones supplied by the employer and use of the employee's own cell phones (phone use is particularly relevant in relation to time wasting);
• Any changes to the policy should be advised to all employees.

As noted above, the existence of a policy and how extensive it is could be relevant in determining to what extent an employer should be penalised by the actions of their employees. In addition to having a policy, it would be important to keep a document trail of what steps the employer has taken to ensure that there is no illegal file sharing and what steps have been taken when illegal file sharing has been discovered (or suspected).

For more information please visit: www.3strikes.net.nz

Please contact me if you would like to acquire a Communications Policy (computer, email, telephone) or if you would like assistance with any employment issues.

Steven Dukeson LL.M. (Hons.), Barrister & Solicitor
Dukesons Business Law
PO Box 946, Shortland St, Auckland 1140, New Zealand
Level 3 (Room 303B), Achilles House, 8 Commerce St, Auckland
Phone 64 9 379 4556 Fax 64 9 379 4557
Email: steve@dukesons.co.nz
www.dukesons.co.nz
LinkedIn:  http://nz.linkedin.com/pub/steven-dukeson/13/144/320