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By: Wayne S. Melnick
One of the newest and most quickly developing areas of tort liability is regarding torts committed over the internet. The most common “traditional” tort that occurs (or is alleged to have occurred) when it comes to social media posting is for defamation. A recent case is Georgia has just affirmed the potential for parental liability for the posts made by their children in this “wild west” frontier of internet tort liability.
In Boston v. Athearn, 2014 WL 5068649 (Georgia Ct. of App. Case No. A14A0971, decided October 10, 2014), the Georgia Court of Appeals reversed (in part) a trial court decision granting summary judgment to the defendants and sending the case back for trial. In Boston, Alexandria (“Alex”) Boston, through her parents, brought suit against Dustin Athearn, his parents, and other defendants when, posing as Alex, Dustin created a Facebook account and profile and posted photographs and statements in that forum that constituted libel under Georgia law. In a nutshell, Dustin and a female friend of his used the Athearn family computer to create the account and made posts that indicated racist viewpoints and a homosexual orientation. Dustin and the friend also sent out “friend” requests to many of Alex’s classmates, teachers, and extended family members. Within a day or two, the account was connected as Facebook “friends” with over 70 people. Dustin and the friend continued to add information and posted status updates and comments on other users’ pages that were graphically sexual, racist, or otherwise offensive; with some falsely stating that Alex was on a medical regimen for mental health and that she took illegal drugs.
When Dustin’s parents were informed (after the truth was discovered at school), they disciplined Dustin and forbid him for one week from seeing his friends after school. Critically, the unauthorized page, however remained accessible on Facebook for an additional 11 months and was eventually deactivated by Facebook officials approximately 2 weeks after the lawsuit was filed. During the 11 months the unauthorized profile and page could be viewed, the Athearns made no attempt to view the unauthorized page, and they took no action to determine the content of the false, profane, and ethnically offensive information that Dustin was charged with electronically distributing. They did not attempt to learn to whom Dustin had distributed the false and offensive information or whether the distribution was ongoing. They did not tell Dustin to delete the page, they made no attempt to determine whether the false and offensive information Dustin was charged with distributing could be corrected, deleted, or retracted.
In reversing the grant of summary judgment to Dustin’s parents, the appellate court found that there were questions of fact to be resolved by a jury whether Dustin’s parents were “negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence.” This theory of liability was not grounded in vicarious liability, but rather direct liability – whether Dustin’s parents were, themselves, negligent in failing to supervise and control their child with regard to conduct which posed an unreasonable risk of harming others. The court grounded the potential liability not in the parents’ allowing Dustin original access to the internet, but rather, because they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile.
This case opens a very potentially slippery slope to parents and what they might be held legally responsible for once they learn of the harm their child is causing on the internet. The message is clear – once parents know their child has done harm with digital weapons, it is incumbent upon the parents to end the harm or potentially face ultimate liability for failing to do so. We will continue to watch this case and see if, after trial, liability is ultimately laid at the feet of the parents.