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Employers could be vicariously liable for offensive images on networks.

Image Analyser : 29 May, 2007  (Technical Article)
Image Analyzer warns employers of the risks associated with offensive images sent across e-mail systems as they could contravene the Prevention from Harassment Act.
In broad legal terms, employers are responsible for the actions and omissions of their employees in the course of their employment. This is known as the Doctrine of Vicarious Liability. It follows that any misdeeds committed by workers in the course of their employment can lead to legal claims being successfully taken against the employer by the injured party.

In a landmark case in 2006 on the subject of bullying in the workplace; the House of Lords changed the law so as to make employers liable for workplace harassment even if they were not in any way negligent.

The House of Lords decided that the Prevention from Harassment Act 1997 covers the behaviour of employees at work even when the employer has not caused or failed to prevent the offending behaviour. Those employers now have vicarious liability for the acts of employees.

Crispin Pikes, CEO of Image Analyzer an image analysis technology provider commented, "Previously, employees had to prove that the employer was negligent in not stopping bullying taking place and that it had caused them psychological damage."

Pikes continues, "The new ruling means that companies can be sued even if the company cannot be expected to have known about the bullying, and this ruling is certainly wide enough to include the use of inappropriate image materials as the vehicle for e-bullying."

This decision has serious implications for employers as it gives employees who are bullied or harassed at work a further basis on which to claim compensation from their employers. Moreover, some of the existing limitations and defences will not be available.

For example, an employer has a defence under existing discrimination legislation if it can show that it took all reasonably practicable steps to prevent discriminatory harassment occurring - this defence was recently made out where an employer had implemented an effective harassment policy.

This would not help an employer facing a claim that it was vicariously liable for an employee's harassment under the Prevention from Harassment Act 1997.

As we know that harassment takes place in the workplace through the use of pornographic images, it seems that the only avenue forward for employers in avoiding the breadth of this decision is to technologically interdict the harassment and the inappropriate image content employed therein so as to stop it reaching the intended target.

This new law should make employers realise that an effective email and image filtering solution is now a must for any digital workplace and is now the only legal defence in terms of the law and vicarious liability.
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