By: Joseph A. White
Anyone who follows the news knows that Facebook can be used as a weapon for bullying and harassment—with occasionally tragic consequences. In Boston v. Athearn, the Georgia Court of Appeals addressed whether Georgia parents can be held responsible for a child’s Facebook bullying. The answer: a qualified yes.
Boston v. Athearn involved a minor male who created a fake Facebook profileusing a female classmate’s name. Through the profile, he connected with over 70 of his female classmate’s friends, teachers, and extended family members. He posted content on the fake page consisting of, among other things, unflattering altered photos and racist,graphically sexual, and other offensive material. Eventually, he got caught and was suspended from school. Although his parents were notified of his conduct, they did not require him to delete or modify the Facebook profile, which remained active for an additional 11 months until Facebook eventually took it down.
The female student and her parents sued the male student’sparents for (among other things) negligent failure to supervise. The trial court granted summary judgment to the male student’s parents, but the appellate court reversed. The appellate court observed that, under well-established Georgia law, “parents may be held directly liable . . . for their own negligence in failing to supervise or control their child with regard to conduct which poses as unreasonable risk of harming others.” The appellate court rejected the parents’argument that they could not be held liable for their son’s conduct because “they had no reason to anticipate that [he] would engage in [such conduct] until after he had done so”; as the court held, that argument did not “take into account that, as . . . parents, they continued to be responsible for supervising [their son’s] conduct after learning that he had created the unauthorized Facebook profile.” Since the parents failed to force their son to delete or modify the Facebook profile for 11 months after they learned about it, a jury question existed as to whether they acted negligently.
This decision has drawn a lot of attention, and for good reason, as cyber-bullying is both topical and legally novel. But before making too much of this decision, it’s important to remember what the court did not hold. It did not hold that parents have a duty to prevent cyber-bullying in the first instance. Rather, it held that parents may have a duty (if a jury so concludes) to prevent andcontain the damage fromcyber-bullying once they learn it has occurred. This holding aligns with well-established Georgia law and public policy.
What makes the decision noteworthy and interesting, from this writer’s perspective, is that it recognized that an online bully (or his parents) may have an affirmative duty to delete orremove defamatory content from the public domain. This comports with common sense. We all know that the Internet is forever, and as the Georgia Court of Appeals sensibly recognized in Boston v. Athearn, the harm from defamatory online content can extend well beyond the date of its initial publication.