By: Joseph A. White
Anyone who follows the news knows that Facebook can be uses as a weapon for bullying and harassment, with sometimes tragic consequences. Georgia’s court of Appeals recently addressed the question whether parents can be liable for children’s misuse of Facebook in this manner. The answer? A qualified yes.
The case involved a female minor male student who created a fake Facebook profile in a female classmate’s name. Through the profile, he connected with over 70 of the female classmate’s friends, teachers and extended family members. He posted content in the name of the female classmate consisting of, among other things, unflattering photos and graphically sexual, racist and otherwise offensive content. 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 eleven months until the website eventually removed it.
The female classmates and her parents sued the male classmate and his parents for, among other things, negligent failure to supervise their child’s conduct. the trial court granted summary judgment to the male classmate’s parents, but the appellate court reversed. It observed that, under 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 if harming others.” The parents argued that they cannot be held liable because “they had no reason to anticipate that [their son] would engage in [the conduct at issue] until after he had done so,” but the appellate court rejected that argument, stating that their 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.” A jury question therefore existed as to whether the parents acted negligent by allowing the offensive Facebook profile to remain active for eleven months after it was brought to their attention.
Some might consider this decision groundbreaking, but it is important to consider what the court did not hold. It did not hold that the parents has a duty to prevent their child from creating the defamatory Faceook in the first instance. Its holding was much more limited. Basically, it held that the parents may have a duty (to be determined by a jury) to contain the damage since they learned of their son’s conduct. what makes the case novel is that implicitly recognized something we all know to be true: the injury form a defamatory internet posting may continue to exist for as long as the post remains in the public domain.