Georgia appellate court rules parents of minor who libeled classmate by creating false Facebook account and posting defamatory statements and images to that account using a computer and Internet access provided by the parents can be held liable based on a theory of negligent supervision
Boston v. Athearn, A14A0971 (Ga. App. Ct. Oct. 10, 2014)
Abstract: The Georgia Court of Appeals has ruled that the parents of a minor, who libeled a classmate by creating a false Facebook account and posting defamatory comments and images to that account, using a computer and Internet access provided by the parents, can be held liable for negligent supervision. However, the appellate court ruled that the parents could not be held liable as landowners imputed with a duty to remove the defamatory content that had been placed on the false Facebook account from their property. It, therefore, reversed in part and affirmed in part the trial court’s grant of summary judgment to the parents of the minor who libeled his classmate.
Facts/Issues: Dustin Athearn, a who was 13 years old, and his friend Melissa Snodgrass decided to have some fun at a classmate’s expense by creating a fake Facebook page for that person. Dustin used a computer provided by his parents, Sandra and Michael Athearn, and the family Internet account. He created a new Facebook account in his classmate Alexandria (Alex) Boston’s name. Dustin used an altered picture of Alex for the Facebook profile. He and Melissa added information to the unauthorized profile, which indicated, inter alia, that Alex held racist viewpoints and a homosexual orientation. Dustin and Melissa also caused the persona to issue invitations to become Facebook “Friends” to many of Alex’s classmates, teachers, and extended family members. Within a day or two the account was connected as “Facebook Friends” to over 70 other Facebook users.
Dustin and Melissa continued to add information to the persona’s profile and caused the account to post status updates and comments on other users’ pages. Some of these postings were graphically sexual, racist or otherwise offensive and some falsely stated that Alex was on a medication regimen for mental health disorders and that she took illegal drugs. Alex suspected that Dustin was involved, because she recognized the profile photo as one he had taken at school. Alex’s parents, Amy and Christopher Boston, approached the school’s principal, Cathy Wentworth, for help. On May 10, 2011, Wentworth called Dustin and Melissa to her office. They admitted their involvement, and each signed a written statement.
Wentworth assigned them to in-school suspension for two days for their harassment of Alex. She called their parents. She also sent home a “Middle School Administrative Referral Form” to explain the disciplinary action. The Referral Form included the following “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.” Dustin’s mother, Sandra Athearn, reviewed the form, signed it and discussed the incident with her husband, Michael. The Athearns disciplined Dustin by forbidding him from seeing his friends after school for one week.
The unauthorized profile and page remained accessible to Facebook users until Facebook officials deactivated the account on April 21, 2012. During the 11 month period that 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 also made no attempt to determine whether the false and offensive information Dustin was charged with distributing could be corrected, deleted, or retracted.
On April 3, 2012, The Bostons filed suit in state court against Dustin and his parents. The suit claimed that Dustin had defamed Alex by creating and posting to the false Facebook account. It also alleged that Dustin’s parents had breached their duty as parents to supervise their minor child and breached their duty as landowners to remove defamatory content existing on their property. In addition, the suit alleged that Dustin’s actions constituted intentional infliction of emotional distress.
The Athearns filed a motion for summary judgment and the trial court granted their motion.The Bostons appealed the case. The Bostons’ appeal contended that questions of material fact existed regarding whether the Athearns were negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence. In addition, they contended that questions of material fact remained regarding whether the Athearns, as landowners, breached a duty to remove defamatory content existing on their property.
Ruling/Rationale: The Georgia Court of Appeals affirmed in part and reversed in part the trial court’s grant of summary judgment in favor of the Athearns. Addressing the question of whether the Bostons had stated a claim of negligent supervision that should have gone to a jury, the appellate court stated that the “key question is the foreseeability of the harm suffered by the plaintiff, that is, whether the 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.” It pointed out that the question of whether the parents failed to exercise ordinary care in supervising or controlling their child is in general one for a jury to decide “when the circumstances support an inference that the parents were on notice that, absent their intervention, injury was likely to result from the child’s conduct.”
While conceding that the Atherans may not have been able to anticipate Dustin’s misuse of the computer and Internet in the first instance to cause harm with malicious intent, the appellate court stressed that “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.” As a result, the court rejected the Athearns’ argument that they could not be held liable for negligently supervising Dustin’s use of the computer and Internet account. It concluded: “While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication.”
The appellate court determined that given the nature of libel, that the initial tortious act could continue to be published to additional readers after the first publication, “the defamatory content persists in a public forum without public correction or retraction.” It concluded that “a reasonable jury could find that, after learning on May 10, 2011, of Dustin’s recent misconduct in the use of the computer and Internet account, the Ahearns failed to exercise due care in supervising and controlling such activity going forward.” Based on the finding, the appellate court stated: “Given that the false and offensive statements remained on display, and continued to reach readers, for an additional eleven months, we conclude that a jury could find that the Athearns’ negligence proximately caused some part of the injury Alex sustained from Dustin’s actions (and inactions).” It, therefore, reversed that part of the trial court’s decision granting the Athearns summary judgment on the negligent supervision claim.
However, the appellate court upheld that portion of the trial court’s decision granting the Athearns summary judgment on the claim that they had breached their duty as landowners to remove defamatory content existing on their property. After stating, it would set “aside the novel and abstract questions the Bostons’ argument raises regarding where Internet content is ‘exhibited,’” the appellate court pointed out that the Bostons “failed to identify any evidence that, apart from exercising their parental power to control Dustin’s conduct, they had the ability to remove the defamation.” It found: “There is no evidence that the Athearns unilaterally had the ability to take down the unauthorized Facebook page by virtue of the fact that it was created on a computer in their home, because it was created using an Internet service they paid for, or otherwise.” The court held that because there was no evidence to support this theory of recovery, the trial court did not err in granting summary judgment to the Athearns.
Boston v. Athearn, A14A0971 (Ga. App. Ct. Oct. 10, 2014)
[Editor’s Note: As the facts clearly spell out the online student speech/expression in this case took place off-campus using a home computer. Nonetheless, the Bostons first took their complaint to school officials. In July 2010, Legal Clips summarized a New York Times article reporting that schools these days are confronted with complex questions on whether and how to deal with cyberbullying, which is an imprecise label for online activities ranging from barrages of teasing texts to sexually harassing group sites. Affronted by cyberspace’s escalation of adolescent viciousness, many parents are looking to schools for justice, protection, and even revenge. But many educators feel unprepared or unwilling to be prosecutors and judges.
Although a number U.S. Court of Appeals Circuits have weighed in on the question of whether school officials may discipline students for off-campus online speech consistent with the First Amendment, the U.S. Supreme Court has declined to review cases from the Second, Third and Fourth Circuits]