by Lexi Gonzales*
The parents of a seventh-grader may be responsible for his online activity.
In 2011, Dustin Athearn, who was 13 years old at the time, and his friend, Melissa Snodgrass, allegedly decided to create a fake Facebook page of their classmate Alex Boston. Melissa is alleged to have created a Yahoo email account to create a new Facebook account, and gave the information to Dustin. Dustin then created the account, on a computer supplied by his parents and the family Internet account. He is reported to have used a photo he took of Alex and altered with a “Fat Face” application for the profile picture.
The account was created May 4, 2011. Additional allegations are that once the account was created, Dustin and Melissa added information to the unauthorized profile. The information indicated racist viewpoints and a homosexual orientation. They also friend requested a number of Alex’s classmates, teachers, and extended family members. After a few days, the account had over 70 Facebook friends. The two students continued to add content to the profile page. Some posts to the profile page were graphically sexual, racist or otherwise offensive and some falsely stated that Alex was on medication regimen for mental health disorders and that she took illegal drugs. They also allegedly caused the account to post comments on other Facebook users’ profiles as well.
Once Alex became aware of the accounts, she soon suspected that Dustin was behind the false Facebook account after recognizing the profile picture as the one he had taken at school. About a week after the Facebook page was created, Alex’s parents, Amy and Christopher Boston, asked the school’s Principal, Cathy Wentworth, for help. Dustin and Melissa were both called to the principal’s office, where they then admitted to their involvement, and they each signed a written statement.
Dustin’s written statement said: “In homeroom, Melissa and I decided to make a Facebook [page] under someone’s name and she said, “Who do we hate in this room?” I said “I don’t know, Alex Boston?” So we made up a username and a password for it. We went home and made the Facebook [page]. I chose Alex Boston because she followed me around and my friends did not like her and told her to leave me alone. I went home and made Alex Boston’s Facebook [page]. Melissa went home to her house and pretended to be Alex…I went home and posted Alex’s [fake] Facebook [page for] about 4 or 5 days. Melissa went and posted on it the same time.”
The principal assigned both students in-school suspension for two days for their harassment of Alex. Phone calls were made to both student’s parents along with a “Middle School Administrative Referral Form” that explained the disciplinary action being taken and why; “Description of Infraction: [Dustin] created a false Facebook page in another student’s name, pretended to be that person, and electronically distributed false, profane, and ethnically offensive information.”
Sandra Athearn, Dustin’s mother, reviewed and signed the Referral Form and discussed it with her husband, the same day she received notice about the situation. The Athearns’ decided to discipline their son by forbidding him to see his friends after school for a week.
But the false Facebook page remained accessible to Facebook users until Facebook officials deactivated the account on April 21, 2012. During the 11 months this page was active, the Athearns made no attempt to view the page their son had created nor take action to determine the content of the false, profane, and ethnically offensive information that he had been charged with electronically distributing. They did not attempt to learn whom Dustin had distributed the false and offensive information or whether the distribution was ongoing. Nor did they tell him to delete the page. They made no attempt to determine whether the false and offensive information their son distributed could have been corrected, deleted, or retracted. The Facebook records proved that after being disciplined from the school, Dustin continued to distribute false information. The account continued to extend or accept Friend Requests up to the day before Facebook deactivated the account.
The parents of Alex Boston contacted Facebook, and the company officials informed them that only the user who signed up for the password-protected account had the authority to remove the page. (The Facebook terms have changed since 2011, you are now allowed to report false profiles and get them removed.) It was argued that there was no evidence that the Athearns did not have the ability to take down the unauthorized Facebook page, simply by the fact that it had been created on their computer and by using an Internet service they paid for.
A Georgia state appeals court has now ruled that the parents of Dustin are potentially liable for negligence for not forcing him to close the account once they learned of it.
The parents of Dustin could be found liable over his actions, based on the parents’ alleged failure to supervise or control their child, while they as parents had knowledge of facts from which they should have reasonably anticipated that harm to another would result unless they controlled their child’s conduct. Hill v. Morrison, 160 Ga. App. 151 (286 S.E.2d 467) (1981) (“[T]he true test of parental negligence vel non is whether in the exercise of ordinary care he should have anticipated that harm would result form the unsupervised activities of the child and whether, if so, he exercised the proper degree of care to guard against this result.”) (citation omitted).
It could be argued that Dustin’s parents are not at fault for the creation of the page because Dustin gave his parents no reason to anticipate his behavior. They did not have a reason to anticipate the page, until after he had done so, when they received notice from the school. Arguably, the Athearns failed to exercise due care in supervising and controlling their child’s activity going forward from the first notice.
From this information, it was concluded that a jury could find the Athearns’ negligence proximately caused some part of injury Alex sustained from Dustin’s actions (and inactions). The Georgia appellate court rules that the trial court erred in granting the Athearns’ motion for summary judgment in part.
The Bostons contend that, “[i]n addition to their legal duty as parents, the [Athearns] had a duty as landowners to remove the defamatory content that existed on their property[,]” citing the dissenting opinion of Presiding Judge Quillian in Southern Bell Telephone & Telegraph v. Coastal Transmission Svc., 197 Ga. App. 611, 621, 307 S.E.2d 83 (1983).
In Coastal Transmission, Judge Quilliam wrote that “[o]ne who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication.” Further, “when, by measures not unduly difficult or onerous, he may easily remove the defamation, he may be found liable if he intentionally fails to remove it.”
Disregarding an abstract question that the Bostons’ argument raises regarding where Internet content is “exhibited,” they were unable to identify any evidence other than the Athearns’ parental control over Dustin to remove the false Facebook page. And at the time, the only person able to remove the page was the user who signed up for the password-protected account. Given that, the trial court did not err in granting the Athearns’ motion for summary judgment in part.
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Primary source for this article: http://online.wsj.com/public/resources/documents/2014_1015_facebookgeorgia.pdf