Georgia Court Says Parents May Be Liable For What Their Kid's Did

[Mike]

A Georgia appeals court has said that parents of a 7th grader can be held liable for what their son posted on Facebook. At issue is a Facebook post where the son created a fake Facebook profile of a classmate of his, posting distorted images of her to make her look fat (ah, junior high schoolers...) and then including "profane and sexually explicit comments on the page depicting her as racist and promiscuous." Alerted to this, the kid's school suspended him, and his parents grounded him. However, the Facebook page stayed up for 11 months. The parents of the girl then sued the parents of the boy, claiming that they had "breached a duty to supervise their child's use of a computer and an Internet account" and, further, that they had "breached a duty to remove defamatory content existing on their property." The court rejected that second argument, but found the first argument at least reasonable enough to proceed to a jury.

Part of the issue is that, after finding out about the fake page, the boy's parents, beyond grounding him, didn't look into what the page was, and where it was. The court argues that this could be negligent, because having been informed of the problematic page their son created, they may have had a responsibility to then monitor that page.

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.

But that seems problematic on any number of levels. There is no indication that the boy continued to post to the page after being disciplined for it. So there wasn't any issue with the parents' ongoing supervision of his computer and internet usage. The idea that they could retroactively be held liable because once they found out about it they only punished him and didn't go further to find and delete the page he created seems awfully troubling. And that's before even getting to the issue of why the liability should be put on the parents anyway. There's this myth out there that parents should supervise any and all computer/internet usage. Not only is that impossible, it's also a bad idea. Yes, parents should help kids learn to use the internet, including some early supervision, but part of learning to do something is learning to do it on your own. That means teaching them about risks and how to deal with them, and encouraging them to ask questions or raise concerns if they find them -- but it shouldn't mean watching over their shoulder every moment online.

This kind of ruling doesn't necessarily mean that parents across Georgia need to immediately start spying on their kids' surfing activities, but it does suggest -- ridiculously -- that upon notification of a problem, they suddenly have a responsibility to monitor and clean up any messes their kids caused. That's very dangerous thinking.

However, there is another interesting angle, which lawyer Marc Randazza has suggested on his blog, that the parents should make use of CDA Section 230 to claim they're immune from liability. Remember, the whole point of CDA 230 is that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." And yet, this ruling effectively holds the parents responsible for the speech of their son. CDA 230 is mostly used to protect service providers from liability, but the law clearly also applies to "users." As Randazza notes:

It is without dispute that the content was provided by another person, namely the son. The son, therefore, is the liable party – not the parents – and under the CDA, any claim to the contrary appears to be barred.

He points to one case, in California that seems at least marginally analogous:

In Delfino v. Agilent Techns. Inc., 145 Cal. App. 4th 790, 806 (2006), the California court of appeals found that when an employee used the employer’s computer network to send threatening messages, the employer was not liable. In that case, the court held that although the defendant-employer merely acted as the provider of the computer system, the plaintiff’s tort claims in essence sought to hold the employer liable for the publication of the threatening messages. Id. Therefore, the employer was immune under § 230.

Randazza further notes, in a footnote, that the rulings in two of Prenda/AF Holdings failed lawsuits, claiming "negligence" for leaving WiFi opened, further reinforce the idea that Section 230 should apply in cases involving things like "negligence" for enabling the actions of others. It's too bad the lawyers for the parents either chose not to raise this argument, or perhaps didn't even realize it was open to them.

Originally Published: Fri, 17 Oct 2014 19:34:00 GMT
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