“Before this legislation, if [you] were an employer or computer guy and came across what is an image of child pornography and would have taken steps, but you didn’t know what to do or you didn’t know how to do it then that is a real problem,” says Broten. “This bill makes it clear that you have to report, you have to have liability for reporting.”
The bill amends the Ontario Child and Family Services Act and will be brought into force by regulations outlined by the Ministry of Children and Youth Services. Broten says while these regulations will outline the agencies to report to. Currently, there is no timeline for when the regulations will be released.
Broten does not anticipate that regulations will outline a reporting structure for companies saying the act “makes it mandatory for anyone who believes that a representation or image that they come across is child pornography that they have to report that information.”
The bill does not require anyone to look for child pornography.
Lawyer Dan Michaluk, an information and privacy law specialist with Hicks Morley LLP, says corporations would be wise to prepare for the anticipated regulations.
“It’s clear that corporations don’t bear a direct duty,” he says. “It’s clear that the section is focused on individuals, so the question for corporations is can we wash our hands [of] it, I think the answer is clearly no.”
Michaluk says where corporations may bear responsibility is in putting systems in place and training employees on what is required of them if they come into contact with potentially illegal materials.
“The people who need the greatest support in the corporation [are] IT people,” he says. “What’s called for is creating some sort of protocol that supports people in their reporting environment.”
Employers may look to schools to find structures for mandatory and direct reporting. Systems have been put in place in Ontario schools whereby educators are required to report suspected abuse, the same systems may apply for companies.
“You could take the opposite approach and say ‘it is your [the individual’s] duty, we don’t want to know anything about it,’” Michaluk says. “[That’s] unrealistic because you are a system owner, you can’t divorce yourself from the problem, you have to take ownership of it.”
Broten did not speculate if the Ontario government would create programs to advise employers on the new law or how to train employees on adhering to it. She said discussion of these steps would be premature as the regulations are not in place.
She did however say that polling data received in May last year showed that 94 per cent of Ontarians support tougher child pornography reporting laws.
Once enacted the penalties for failure to report suspected child pornography could be a fine of up to $50,000 or two years in jail.
