November 01, 2014

Parents Could Be Held Liable for Son's Defamatory Facebook Statements

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Boston v. Athearn, 2014 WL 5068649 (Ga. Ct. App.).

A youth created a false and offensive Facebook profile impersonating a peer. His parents took little action after learning of his actions, therefore they could be held liable for negligently supervising his computer use leading to defamation of peer.

In a tort action, Alex sued a fellow seventh-grader, Dustin, and his parents for libel and intentional infliction of emotional distress after Dustin allegedly impersonated Alex by creating a Facebook profile and posting defamatory statements and pictures. 

In May 2011, Dustin and another peer created a Facebook profile with Alex’s name. They used a picture of Alex that Dustin had taken at school but altered with an application that made the person look overweight. He used Dustin’s family’s computer for these actions. 

Over several days, Dustin and his friend added information to the profile, including racist content, and identified Alex as a lesbian. After a few days they added over 70 friends to the account made up of other schoolmates and some teachers. They posted comments and other material with racist, graphically sexual, and other offensive content. They also implied that Alex was mentally ill and a substance abuser.

Alex suspected that Dustin had created the page upon remembering that he took the profile picture. Her parents approached the school and Dustin and his friend admitted to creating the page and content. They were given in-school suspensions. Dustin’s parents grounded him for a week. 

The Facebook profile remained up for approximately a year until Facebook administrators deleted it around the time Alex’s parents filed a lawsuit. In the interim, Dustin’s parents did not ask him to delete it, attempt to access it to correct or take down information, view the page, or otherwise attempt to correct the situation. 

The trial court granted the defendants’ summary judgment motion. Alex appealed to the Georgia Court of Appeals. 

On appeal, Alex argued that the peer’s parents were liable for negligently supervising their son’s use of a computer. 

The Georgia Court of Appeals held the trial court erred in granting the defendant’s motion for summary judgment.

First, the court reviewed the procedural posture - noting that summary judgment was warranted where a party meets, or the opposing party fails to meet, the elements alleged and “there is no genuine issue as to any material fact.” 

The court next noted that, under Georgia law, a parent is not automatically liable for a minor’s tort. However, a parent may be liable if their own negligence in supervising the child creates a known unreasonable risk of harm to others. 

On appeal, Dustin’s parents argued they did not know of the defamation risk posed by allowing their son to use a computer until after they were notified by the school. However, the court concluded, after they were notified, the libelous material remained on the Internet and could have been seen by new people. As such, the defamation continued after they were notified. The court concluded that a reasonable jury could find the parents were negligent in not taking further action to correct the situation. Thus, the court held that the trial court erred in granting their motion for summary judgment.