Faison Middleton on Parental Liability for Social Media Activity
Monday, November 17th, 2014
Though, as a general rule, the parent-child relationship does not mean a parent is liable for any injury caused by a negligent act of the child, there are situations in which a parent can be held liable for acts of a minor child. Most situations can be categorized as follows:
- Parents specifically furnish or permit a child with access to a dangerous instrumentality that has the potential to injure another (such as an ATV); and
- Parents fail to take steps to prevent a child's actions knowing that the child has a tendency for engaging in a specific "dangerous activity."
In most reported court decisions involving potential parental liability, a child has been injured by another person (often a friend) who was operating a motorized object such as a golf cart, ATV, go cart, lawnmower, etc. in a dangerous manner or the child has access to alcohol at parties while parents are away or out of town. Although parents are not necessarily liable for a child having access to these types of potentially dangerous "instrumentalities," parents can face liability if they foresee that injury would likely result if the child does not operate the device safely and the parent knows the child has a tendency to use the object in a dangerous fashion. In other words, if a parent has no reason to believe that injury could result from the activity, it will be difficult to establish liability against the parent.
A different group of legal decisions address the specific question of parental liability as a result of failing to properly supervise a child who is engaging in conduct that may present an unreasonable risk of injury to another. But this new question has surfaced: Are parents potentially liable in Georgia for failing to supervise children's Facebook activity? A recent decision from the Georgia Court of Appeals says in certain circumstances, the answer is "yes."
Friends Dustin and Melissa, 13 years old at the time, created a fictitious Facebook account in the "persona" of another student in their class. They used a computer owned by Dustin's parents supplied to him for his use with the family Internet account.
They posted content designed to make it appear the student had racist views and a homosexual orientation. They also used a profile picture that had been altered using an "app" known as "Fat Face." They invited other "friends" as well as teachers and family members to be Facebook friends. As part of this, they falsely stated that the student (known as "Alex") used illegal drugs and had mental disorders.
Ultimately, Dustin and Melissa were caught. They admitted what they had done. Dustin's parents were fully involved with the disciplinary process through Dustin's school and signed school disciplinary forms describing the admitted infraction. Not surprisingly, the school suspended Dustin and Melissa for "harassment."
The lawsuit alleged that Dustin's parents, despite their knowledge of what the children had done, allowed the Facebook page to remain online for 11 months. Dustin continued to have access to the computer and the Internet during this period. The court described the parents' conduct or lack thereof as follows:
[T]he 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.
Stated simply, the Boston family contended that Dustin's parents were negligent, and thus liable for failing to take action. Dustin's parents argued that they could not be held liable for what Dustin did, including any alleged failure to supervise Dustin, because they did not have any reason to foresee that he would engage in this type of conduct. However, the court concluded that Dustin's parents had a continuing duty to supervise Dustin and their duty to supervise his conduct did not come to an end after the first "publication" of the malicious content. Although some injury to the student "Alex" may have already occurred upon the original publication of the offensive and defamatory content, the re-publication of that content to others throughout the 11-month period was conduct that could have been avoided by proper supervision or control of Dustin.
The court ultimately concluded that a jury should decide whether Dustin's parents exercised "due care in supervising and controlling" the activity of Dustin once they learned of what he had done.
Although these facts clearly present an egregious example of horrible conduct by a child, they also show how far courts potentially will go to hold parents liable for the conduct of their children's social media activities. Parents should be cautious in their approach to supervising and controlling their children's access to what the courts now clearly believe is a "dangerous instrumentality" in the form of a computer or other device providing access to Internet and social media.