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Dangerous Rulings: Georgia Court Says Parents May Be Liable For What Their Kids Post On Facebook

from the bad-ideas dept

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.

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Comments on “Dangerous Rulings: Georgia Court Says Parents May Be Liable For What Their Kids Post On Facebook”

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80 Comments
Anonymous Coward says:

Children are simply not being told by their parents about what right and wrong is. While it’s unfortunate, parents are being held liable for their children because they are not monitoring their children’s responsibilities.

Not only should parents be held responsible for the behavior of their children but those children should also be held responsible.

Khaim (profile) says:

Re: Re:

That’s the thing – the parents aren’t being (potentially) held liable for not monitoring their child. The pages of citations in the footnotes make this abundantly clear. Rather, parents become liable when they are “on notice” that their child might do something bad and they still fail to prevent it.

For example, a child injuring another in their first ever schoolyard fight does not cause his parents to be liable for that behavior. However, if it’s the fifth time he’s injured another student, then the parents are liable.

In this case the parents are certainly not liable for the original creation of the Facebook account. But they very well may be liable for the continuing activity (the account kept accepting friends and posting things) given that the school informed them of the situation.

Finally, the judge didn’t say they are liable, only that they could be, and that the question should be settled by a jury. Sadly TechDirt falls into the “horrible reporting about legal issues” trope, which is depressingly common when talking about motions for summary judgement.

Christopher (profile) says:

Re: Re: Re:

Except that the ‘on notice’ here was basically telling the parents “Your child put up this Facebook page, take it down!” with no evidence given (unless I missed something) that the child in question was actually the one who put it up.

With the EASY ability to fake being someone else today on the internet? I would not trust that X was done by person Y unless you had a videotape of the person putting up the page in question.

IP addresses? Too easy faked. MAC Addresses? Ditto.
Let’s not even bring up TOR, I2P, etc.

Khaim (profile) says:

Re: Re: Re: Re:

No, the “on notice” (which is kind of a legal term, judging by the citations) was when they were told that their child had created a fake Facebook profile and defamed another student.

At that point they’re not liable for anything. But they have a responsibility going forward to take reasonable steps to make sure their child doesn’t do it again. Or keep doing it, in this case.

I’m not sure what your point is about “it’s easy to fake being someone”. No one is disputing that the kid did this. He confessed to the school.

G Thompson (profile) says:

Re: Re: Re:2 Re:

using this logic the school would be ultimately liable for this since they actually suspended the child and should of made it a condition of that suspension that the page in question was removed.

Parents can no more be held liable for the actions or inactions of what their child may or may not have done (whether the child has done it 1 or x times) then a friend who knows there other friend was doing something and they didn’t stop them.

There is no Duty, there is NO Neighbourhood duty either. If there is a duty or the court claims there is then the whole system then becomes unequitable since then Parents should be absolutely immune from anything they need to do to stop this or any other behaviour once ‘known’ about.

Oh and until a court determines (not the school) that the page in question was defamatory then there is NO foreknowledge of a defamatory statement, only an alleged defamatory statement. Therefore your s230 should absolutely be a defense as well.

Anonymous Coward says:

Re: Re: Re:2 Re:

> But they have a responsibility going forward to take reasonable steps to make sure their child doesn’t do it again. Or keep doing it, in this case.

That isn’t even possible. They could have deleted the account and changed the password, and even done the Parent Over Shoulder thing whenever the kid was on line. That wouldn’t have stopped a determined kid from creating a new page. All he needed to do was borrow another kid’s phone, or find an unoccupied computer somewhere.

Eldakka (profile) says:

Re: Re: Re:3 Re:

But from the sounds of things, they didn’t even try to do any of these things.

Yes, there is only so much one can do, but it sounds like they didn’t exhaust (or even come close to) taking all reasonable steps.

Sure, if you at home put up a filtering proxy so the kid can’t access facebook, or prevent him entirely from using a computer, he could still go to the library or use a school computer or go to his mates house. But at least they would have tried reasonable steps.

Binko Barnes (profile) says:

Sorry, but parents ARE responsible for their children and their children’s actions until those children reach adulthood. This is an incredibly well-established legal principal.

There are vast hordes of really nasty little kids rampaging around the internet flinging obscenities and racial slurs right and left. Parents need to wake up to the fact that their little “angels” may be evil demons when left unsupervised online.

G Thompson (profile) says:

Re: Re:

uhuh.. Bullshit

So why hasn’t the state instituted parens patriae proceedings to intervene & even remove these little demons from their negligent parents? hmmm?

And parents are ONLY responsible in highly exigent circumstances where there is serious criminal offenses that they have known about and INTENTIONALLY have not done anything about.

Before quoting legal principles or doctrines it is necessary to know the elements of those principles and put them into context of the case at hand.

Anonymous Coward says:

Where do you live that you believe that parents are not telling their kids what is right and wrong? Were you never a kid (or are you still one?) I did a lot of things my parents told me not to do. My kids do things that I tell them not to do.

That is the whole point of growing up, you begin to learn that there are things you really shouldn’t be doing.

OldGeezer (profile) says:

The parents may not be legally liable but they are idiots for not making sure the brat took the fake account down. I thought that you could register a complaint over something like this and Facebook would investigate and remove it. This clearly violates their policies. There was nothing in the article about the classmate’s family trying to get it taken down. Did they even tell the kid’s parents that the offensive page was still online or did they do nothing all this time before bringing legal action?

Gwiz (profile) says:

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.

I don’t think this argument means much really. Georgia Code § 51-2-3 states that the parents or legal guardians are liable up to $10,000 for willful or malicious acts of minors anyways.

Christopher (profile) says:

Re: Re: Re:

No, there should not be a similar statute in all 50 states and those statutes should be challenged.
It is basically expecting parents to be mindreaders and seers with their children, something that NO ONE is with ANYONE.

Those laws go too far towards the stupidity of “We have to hold someone responsible and since under the legal doctrine we cannot hold the children responsible, we will go after the adults!”

There are some times where while the children cannot be held legally responsible and fined, they should be put under court-ordered supervision if the parents were negligent. In this case, I do not know how you can say the parents were negligent.

Anonymous Coward says:

Re: Re: Re:

Fine the parents because they owned guns.

If the guns were stolen from the neighbor would you fine them too?
Only seems fair to me.

If some kid steals your car and runs over a baby in a carriage, we should fine you for letting you car kill a baby.

What ever happened to personal responsibility?
I think it’s perfectly fine that this defaming facebook posting child is sued.
If he is ordered to pay a fine, great!
The parents should be liable to pay the fine levied on that child UNTIL such time that the child is emancipated. At that time any remaining balance of the fine is solely the responsibility of the child.

I do not agree that the parents should be sued for the action of their children.
But I do agree that they should be held jointly responsible for an judgments until the child becomes an adult.

Anonymous Coward says:

If a 14 year old kid broke my window, I would ask their parents for the money to replace it.

If a 14 year old kid engaged in criminal harassment on one of my kids, I would ask their parents do what they can to make it stop, and I think that reasonably extends to something like a website if that was the source of the harassment.

As parents they should at least show that they attempted to make contact w/Facebook as the parents to discuss their options. IMO, a parent would be falling down on the job if they were told that their child was being a jerk on Facebook and didn’t even bother to look at the activity in question.

I think that it’s perfectly reasonable to consider parental liability when their dependants are guilty of a criminal act. So I guess at this point, I think what really matters is if the kid is actually guilty of a crime or not.

Anonymous Coward says:

Re: Re:

Behaving in a civilized manor is one thing.

A law that says you must behave in a civilized manor is something completely different.

Just apply your logic to speech issues. Just becomes I should teach my child not to call Obama a poopy head, doesn’t mean it’s okay for their to be a law that says my child can’t call Obama a poopy head and I have to do something to stop it.

Anonymous Coward says:

Re: Re: Re:

A law that says you must behave in a civilized manor is something completely different.

Plenty of laws are about holding people accountable for engaging in uncivilized behavior. What’s important in this case is the fact the person being accused of being uncivilized is a child, and there will always be some connection between the acts of a child and the responsibility of the parent to deal with it.

Remeber what is in question is the allegation of a crime. If the kid is found guilty of a crime, then the parents have a responsibility (i.e. liability) to make remedies as needed.

To carry your metaphor:
If my kid called the POTUS a poopyhead once, he’s just expressing an opinion.

If my kid used their mobile phone to make threating calls to the White House for a month straight, and after being told about it, I don’t take their phone away maybe I’m on the hook for something too.

Christopher (profile) says:

Re: Re:

Except that in this case, the parents in question HAD NO IDEA THAT THEIR CHILDREN WERE DOING THESE THINGS UNTIL NOTIFIED!
To then try to punish them for not being frigging SEERS is insanity in my opinion and that of my lawyer boss, who would GLADLY take this case if he had a license to practice law in that part of the country to hammer it through that “Parents know about it before the child does it or during? They can be held responsible. Parents did not know about it before the child does it or during? Parents cannot be held responsible!”

Khaim (profile) says:

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.

If you’re out in public and your child shits all over the floor, is it “dangerous thinking” to suggest that you clean it up?

I’m normally in complete agreement with this site’s view on free speech issues, but for this one I think you’ve gone off the deep end. Parents are responsible for their children, in general. I agree that holding a parent liable for stupid things their child does on the internet is a bad idea, but that’s not the issue, and no one is claiming it is. (Although for some reason you spend a lot of words talking about it.)

The issue is whether parents are responsible for cleaning up after their children, and whether they can be held liable for not doing so. This doesn’t seem all that dangerous, depending on the standard of negligence required. If we assume a “good faith” attempt is sufficient, then I’m completely fine with this precedent.

scotts13 (profile) says:

How Facebook savvy are the parents?

It beggars credulity that the parents were aware the objectionable materials were available on an ongoing basis, and did nothing about it. It is possible they though it was a one-time thing, like sending an email? Did the parents of the other child request the account be take down, and did this set agree to do so?

Are we now legally required to know how Facebook works?

Anonymous Coward says:

It’s the responsibility of every parent that they are responsible for the behavior of their children until they turn the legal age in their state, whether that’s 17 years or 18 years of age.

Just as the parent is liable for the actions of their children when they destroy private property, steal from a store or break a window, so are they responsible when their children commit an act that harms another person.

Christopher (profile) says:

Re: Re:

Then it is time to change the laws then, to make it so that if the parents KNOW about their children doing something and can actually do something to make it stop (and it is actually illegal and not just a bunch of “I don’t like what you are doing so stop it or I will punish you!”) then they can be held responsible.

Until then? Sorry, not going to be held responsible. I have already seen cases in Maryland where once the parents of X ‘delinquent’ child proved they did all they could? They were ABSOLVED of responsibility for their child’s actions and court cases against them were thrown out.

Anonymous Coward says:

A Point of Dispute

I noticed the “parents must now read kids’ minds” argument and want to point out an important section from the article:

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. (emphasis mine)

Going by the above statement, the parents were informed of the harassment, and unless we are not being told something, would that disclosure have to include the fact that it happened over Facebook? Even if it didn’t come up, wouldn’t a reasonable parent ask for details?

In other words, there’s no mind to read. It sounds to me like the parents were not only told what happened, but how it happened. All we can guess, is that it never occurred to them to do anything about it, even though it was part of the problem.

Christopher (profile) says:

Re: A Point of Dispute

Except how were they supposed to do something about it? Facebook is NOTORIOUSLY hard to get a profile off, especially if it has accurate information in it like person’s birthdate, home address, etc.
Near impossible unless you are a police organization is how I put it in an earlier post and that is quite accurate.

Anonymous Coward says:

Re: Re: A Point of Dispute

And that sounds like an argument that I hope the parents make, because again, my (admitted) assumption is that the parents did nothing, or it did not occur to them to try.

Though the thought of the parent simply wrangling the sign-on information from the little punk has a certain appeal to it. I mean since the kid was already grounded, there would be plenty of time for meaningful parent-child talks about being a decent human being…

Eldakka (profile) says:

Re: Re: A Point of Dispute

And if the parents can provide evidence that THEY TRIED and were rebuffed by Facebook, then they’d be golden.

They can produce said evidence, yes? You know, maybe even a single email to Facebook support outlining the situation and asking for the removal, with Facebook’s reply to go get knotted?

Or perhaps even better, they can produce evidence they instructed their child (the owner of the account) to go and delete the account, but he refused? That would also probably help them out. Because at least they tried.

Anonymous Coward says:

You’re wrong about this one. They’re only liable because they not only failed to ensure that their son removed what he was supposed to remove, but didn’t even check up on whether it was happening or not.

“What’s that Jimmy? You have a court mandate to do something? Well, let’s forget about it for a year and do nothing.”

Not a recipe for success.

mattshow (profile) says:

The court did not say that parents are required to become all-seeing and all-powerful beings capable of supervising their children’s every waking action. The duty of care required by parents will be different depending on the circumstances of the case and all the court was saying was that in this particular case, these particular parents breached the duty of care presented by these particular circumstances. Which probably wasn’t a hard result to reach considering they didn’t even take the most basic of steps. All we can really learn from this case is that if your kid gets busted making a defamatory Facebook profile, you should probably inquire as to whether he has taken it down.

(I feel safe making this claim because I notice that, as far as the law of negligence goes, even Randazza doesn’t have a problem with how this case went).

I also don’t read the CDA quite as liberally as Randazza does. If I was on the other side of that file, I’d argue that an action for negligent supervision of a child does not “treat the defendant as a publisher or speaker of information”, and so section 230 does not apply. But I’m quite happy to concede that Randazza knows far more about that topic than I do. (Us Canadian lawyers needn’t concern ourselves with such things).

Atkray (profile) says:

If this stands then the next case could well be someone who locks their kid in a cell in the house (remember, the state does this all the time) to keep a troublesome youth from creating liabilities for them.

“I’m sorry your Honor but little Amy is just impossible to control unless we keep her in a cell.”

Making parents responsible is an stupid idea, the only way children will learn is if they are held responsible, and feel the consequences of their actions.

Shifting that to the parents accomplishes nothing.

This case is about parents and their parasite attorney trying to extort money, instead of teaching their daughter how to overcome this on her own.

Sadly they are likely to win.

Anonymous Coward says:

Confused

OK, getting the legal system involved is obviously nonsense. But why wasn’t one of the school’s requirements for ending Dustin’s suspension that he shut down (or at least log into and blank out) the fake profile? Or for that matter, why didn’t the parents make him do that to have his grounding lifted? (Since their son was suspended, I’m gonna go out on a ledge and assume someone told them why.)

Or maybe he could’ve handed the login info over to the girl he was hassling, along with cooperating in changing that login info using whatever e-mail verifications were necessary on his part to complete the job.

Based on all the lively discussions in the comments, I’m sure I must be missing something really obvious here…

Did he clear the account and then repost stuff later?
Did he lie about clearing it, and nobody bothered to confirm?

Cyber Killer says:

There is some logic to this

I’m thinking about this somewhat differently… I mean – after a “crime” is commited, the effect should be punishment and making right the wrongs which were done (if possible). The punishment here was done (supension, getting grounded, etc), but the damage done wasn’t fixed – the profile page was still there, potentially harming the victim further. The boy should be forced to additionally take the page down and appologise or otherwise give something back to the victim. (But the parent’s should not be a part of this whole business though.)

Dan G Difino says:

True Liability belongs to School/Government

From the tender age of 5 years old, a child in America is enbroiled within the confines of the education system at least until the age of 16, but more likely 18 years of age. From approximately 7:30 am until 3:30 pm, longer with extra-curricular activities, 5 days a week children are under the adult supervision of staff and faculty of their particular school. Its a cheap shot for a court to dump 100% liability and responsibility on the parents of a child who may be acting unruly. If there is some problem stemming from a situation beginning at school, then the staff and faculty who has control of 50% of that child’s cognitive day should step up to control that situation and also to inform the parents of any problem and in particular problems that needed disciplinary action. The school has an obligation to teach children moral and ethical behavior which begins with respect for others. Parents share equally in the upbringing of their kids, not totally. That is more in line with reality.

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