The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Boston v. Athearn (Ga. Ct. App. Oct. 10, 2014), the plaintiffs' allegations (paragraph breaks added):
In early May 2011, Dustin [Athearn], who was 13 years old, and his friend, Melissa Snodgrass, agreed to have some fun at a classmate's expense by creating a fake Facebook page for that person. Dustin selected Alex, a fellow seventh-grader, as their target, and Melissa agreed. Melissa, posing as Alex [Boston], created a Yahoo e-mail account to use to create a new Facebook account, and gave that information to Dustin.
On May 4, using a computer supplied by his parents for his use and the family Internet account, Dustin posed as Alex to create a new Facebook account, using the Yahoo e-mail address and the password Melissa supplied. For the profile photo, Dustin used a photo that he had taken of Alex at school, after altering it with a "Fat Face" application.
After Dustin created the account, both Dustin and Melissa added information to the unauthorized profile, which indicated, inter alia, 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 soon 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 and 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 and signed the Referral Form the same day, May 10, 2011, and discussed the incident with her husband, Michael. The Athearns disciplined Dustin by forbidding him for one week from seeing his friends after school.
The unauthorized profile and page remained accessible to Facebook users until Facebook officials deactivated the account on April 21, 2012, not long after the Bostons filed their lawsuit on April 3, 2012. 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. Furthermore, they made no attempt to determine whether the false and offensive information Dustin was charged with distributing could be corrected, deleted, or retracted.
The court's legal analysis:
Under Georgia law, liability for the tort of a minor child is not imputed to the child's parents merely on the basis of the parent-child relationship. Parents may be held directly liable, however, for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others.
Where liability is based on parents' alleged failure to supervise or control their child, a 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…. "[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 from the unsupervised activities of the child and whether, if so, he exercised the proper degree of care to guard against this result." … Whether parents failed to use ordinary care in supervising or controlling their child is generally a question for the jury 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.
In this case, it is undisputed that Dustin used a computer and access to an Internet account improperly, in a way likely to cause harm, and with malicious intent. The Ahearns contend that they had no reason to anticipate that Dustin would engage in that conduct until after he had done so, when they received notice from the school that he had been disciplined for creating the unauthorized Facebook profile. Based on this, they contend that they cannot be held liable for negligently supervising Dustin's use of the computer and Internet account.
The Ahearns' argument does not take into account that, as Dustin's parents, 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. 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.
Given the nature of libel, the original tortious conduct may continue to unfold as the false and injurious communication is published to additional readers or the defamatory content persists in a public forum without public correction or retraction…. [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.
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). Accordingly, the trial court erred in granting the Athearns' motion for summary judgment in part….
Seems generally right to me. In the words of Restatement (Second) of Torts § 316,
A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.
And it seems reasonable to extend this to unreasonable risks of reputational harm (tortious defamation) as well as physical harm, of course assuming the parents know or should know that their children are defaming someone, and the parents are reasonably capable of stopping such defamation.