“Parents Can Be Liable for What Their Kids Post on Facebook.”
That was more or less the same headline that a lot of media ran after a Georgia appeals court ruled that two parents could be liable for a Facebook account that was created and maintained by their son for the purpose of harassing, bullying, and humiliating a classmate.
Those headlines were accurate. But most of the news stories and blog posts focused too intently on that broad characterization of the ruling. A closer reading shows that parents in Georgia (probably) shouldn’t worry (too much) about being found liable for everything their kids post on Facebook.
Let’s take a look at the facts of the case. The defendant-parents’ son, 13-year-old Dustin Athearn, and a classmate decided they wanted to create a fake Facebook account for one of their classmates. They chose Alex Boston after the two students asked themselves “[w]ho do we hate” in class. They picked Alex because she had followed Dustin and his friends around and they did not like her. See Opinion at p. 4, fn. 2.
Using a computer supplied by Dustin’s parents for his use and a family Internet account, Dustin and his cohort proceeded to create the fake Facebook page for Alex. To the page they added a profile picture of Alex that had been altered using a “Fat Face” application and content that, among other things, indicated that Alex was racist and a homosexual. They then invited Alex’s friends, family members, classmates, and teachers to accept friend requests for the page. Within a few days, approximately 70 of these people accepted the requests. Apparently not satisfied with their work, Dustin and his friend continued to add content and posts to the page and posted from the account on Facebook pages of other people. According to the court, “[s]ome 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.”
(As an aside – and at the risk of sounding old – I’d just like to now give thanks that Facebook and Fat Face apps didn’t exist when I went to middle school.)
Back to the facts. School officials eventually became aware of the situation and determined Dustin was likely involved. Dustin was called into the principal’s office where he admitted his involvement and signed a written statement that detailed his actions.
The school also called in Dustin’s parents, and the principal explained the situation to them. The principal gave Dustin’s parents a document that provided a description of Dustin’s infractions, including creating the fake Facebook page and “distributing false, profane, and ethnically offensive information.” Dustin’s mother reviewed the form and signed it that same day.
Dustin’s parents did punish their son. He was not allowed to see his friends after school for one week.
But the Georgia appellate court latched onto what Dustin’s parents did not do – namely, anything to take down (or encourage Dustin to take down) the Facebook page that their son created and maintained using their computer and Internet service. In fact, during the 11 months after Dustin’s parents were informed of its existence, the fake Facebook page not only remained accessible, it continued to extend and accept friend requests and other users continued to post on the wall of the page. The court noted the following:
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.
Based on those facts, the court ruled that a jury could find that Dustin’s parents “failed to exercise due care in supervising and controlling” his activity regarding the fake Facebook page – after they learned of its existence from school officials – and that their “negligence proximately caused some of the injury” that Alex sustained as a result of their son’s acts and omissions.
The court, however, affirmed the dismissal of part of the lawsuit that was based on a contention that Dustin’s parents had a legal duty as landowners to remove the defamatory content “that existed on their property.”
The attorney for Dustin’s parents told the Wall Street Journal Law Blog that the ruling was inconsistent (he may have a point there) and that they planned to appeal to the Georgia Supreme Court.
So What did the Media Get Wrong?
Turning back to the media coverage of this case, my primary criticism would be that not enough focus was given to the critical facts of the case, and readers may have assumed the court’s ruling is broader than it actually is. In short, there is nothing in the court’s ruling that suggests that Dustin’s parents were liable for this Facebook page the instant he created it, even though he did so using their home computer and Internet service. Nor is there anything to suggest that they were liable for Dustin’s maintenance of the page at any point before the school informed them of the situation. Rather, the critical facts were that Dustin’s parents had actual knowledge of the fake Facebook page for 11 months and did nothing to take it down.
Indeed, Dustin’s parents argued that they could not have anticipated Dustin’s actions until after the school informed them of the website, and the Georgia court didn’t disagree with that point. But the court found “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.”
Application of the CDA?
The Legal Satyricon blog has suggested that Dustin’s parents could perhaps have argued that the Communications Decency Act (“CDA”), 47 U.S.C. § 230, provides immunity for the claims against them. The CDA provides in part 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.” 47 U.S.C. § 230(c)(1). The CDA also states, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Id. § 230(e)(3).
To establish immunity under the CDA, (1) the defendant must be “a provider or user of an interactive computer service”; (2) the cause of action must treat the defendant as a publisher or speaker of information; and (3) the information at issue must be provided by another information content provider. Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 830.
The Legal Satyricon pointed to a California decision, Delfino v. Agilent Techns. Inc. (2006) 145 Cal.App.4th 790, 806, which held that the CDA provided an employer immunity from liability where an employee used the employer’s computer network to send threatening messages.
It does not appear, however, that the CDA has been applied to facts similar to those before the Georgia court. If that happened, the key issue would likely be whether the parents would be considered providers of “an interactive computer service” under the CDA. To that point, Legal Satyricon correctly notes that courts have consistently held that the protections of the CDA are broad and robust and that the definition of “interactive computer service” is likewise broad. See, e.g., Batzel v. Smith, 333 F. 3d 1018, 1030 (9th. Cir. 2003). Nevertheless, courts have also noted “troubling results” can sometimes occur from the CDA’s broad protections. Id. at fn. 19.
It would have been interesting to see what would have happened if the Athearns had raised the CDA as a defense. I would think significant public policy issues could be raised given the rise of cyberbullying and the sometimes-tragic results of such actions. That could probably be the subject of a law review article – much less a blog post. At the very least, Alex’s parents could have argued that the Athearn parents were not the speakers or publishers of the offending information. The Legal Satyricon blog doesn't think much of this argument, but, as the Georgia court appeared to rule, Alex's parents could instead argue that the Athearns are liable under a negligence theory arising from their failure to supervise their son once they had actual knowledge of the Facebook page.
We'll have to wait and see if this issue arises in a future, similar case.