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

from the bad-ideas dept

Fri, Oct 17th 2014 12:34pm — Mike Masnick

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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Filed Under: appeals court, defamation, georgia, kids, liability, negligence, parents, section 230, social media
Companies: facebook

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Anonymous Coward, 17 Oct 2014 @ 12:57pm

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.
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Binko Barnes (profile), 17 Oct 2014 @ 1:03pm

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.
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Anonymous Coward, 17 Oct 2014 @ 1:05pm

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.
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OldGeezer (profile), 17 Oct 2014 @ 1:05pm

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?
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Gwiz (profile), 17 Oct 2014 @ 1:05pm

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.
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Anonymous Coward, 17 Oct 2014 @ 1:17pm

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.
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Khaim (profile), 17 Oct 2014 @ 1:22pm

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.
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scotts13 (profile), 17 Oct 2014 @ 1:24pm

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?
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Anonymous Coward, 17 Oct 2014 @ 1:25pm

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.
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PRMan, 17 Oct 2014 @ 1:28pm

Re:
Sorry, Mike, but you're absolutely wrong on this one.

Parents SHOULD be held liable for their children's misdeeds. It leads to better parenting.

If he defamed her and they neglected to remove it, they should be held responsible. Maybe then they will take Junior's bullying seriously.
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Anonymous Coward, 17 Oct 2014 @ 1:29pm

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.
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PRMan, 17 Oct 2014 @ 1:32pm

Re:
And I am sure there is a similar statute in all 50 states, as there should be.

Personally, I think the Columbine parents should have been put in jail and/or $150,000 fine for endangering their children (since they ended up, you know, dead from self-inflicted wounds from the guns they had in the house).
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PRMan, 17 Oct 2014 @ 1:34pm

Re: Re:
"Obama is a poopy head" is not defamation, it's free speech (and surprisingly fun to say).

What the child did here was ruled defamation in a court of law. There are laws that you must not lie about others in an attempt to harm them.
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PRMan, 17 Oct 2014 @ 1:35pm

Re: How Facebook savvy are the parents?
I think the court is saying that if your child defamed another child, then yes, you are responsible to figure out how it happened and make it stop.
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Christopher (profile), 17 Oct 2014 @ 1:36pm

Re: Re:
Who says that they 'neglected' to remove it? The fact is that removing something from Facebook unless you are a police agency is extremely difficult.
They basically tell you "Go pound sand!"
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Christopher (profile), 17 Oct 2014 @ 1:37pm

Re:
It is legal precedent that should have never been made. If the parents know what their children are doing? Okay, THEN they can be held liable for it.
However, if the parents do not know, as was the case here, they should NOT be held liable for what they did not know about.
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Khaim (profile), 17 Oct 2014 @ 1:38pm

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.
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Christopher (profile), 17 Oct 2014 @ 1:39pm

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.
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Mike Masnick (profile), 17 Oct 2014 @ 1:40pm

Re:
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.

No, actually it's not. There are some cases where they are, but most actions are the kids' responsibility, not the parents.
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Anonymous Coward, 17 Oct 2014 @ 1:41pm

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.
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Christopher (profile), 17 Oct 2014 @ 1:42pm

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!"
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Mike Masnick (profile), 17 Oct 2014 @ 1:43pm

Re: Re:
Parents SHOULD be held liable for their children's misdeeds. It leads to better parenting.

Do you have kids? Do you have any idea how wrong you are? Thinking parents have the ability to control their kids actions is pure ignorance.

If he defamed her and they neglected to remove it, they should be held responsible. Maybe then they will take Junior's bullying seriously.

They did take it seriously. They grounded him. Not removing the Facebook page shouldn't be their issue.
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Christopher (profile), 17 Oct 2014 @ 1:44pm

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.
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Mike Masnick (profile), 17 Oct 2014 @ 1:46pm

Re:
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.

Section 230 trumps such a law when it comes to speech, so nope.
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Christopher (profile), 17 Oct 2014 @ 1:48pm

Re: Re: Re:
Exactly, Mike. People always say that "Parents have control over their children's actions!" but unless you threaten them with broken bones and serious burns if they do X or Y, you cannot control them.

Sooner or later they suss out that you doing that is a crime in and of itself and you are using hyperbole, i.e. empty threats, so they dismiss you.

Better thing to do is to tell children why they should not do X or Y very early and unless they are causing PHYSICAL injury to someone else (key term there, the P word) or damage to PHYSICAL property not their own?
There is nothing wrong with 'harassing' someone morally.
Yes, it is dickish in the extreme but it is not something that we should be criminalizing unless you want those laws to be WIDELY overstretched, considering how vague the politicians love to make these laws.
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Mike Masnick (profile), 17 Oct 2014 @ 1:49pm

Re: Re: How Facebook savvy are the parents?
I think the court is saying that if your child defamed another child, then yes, you are responsible to figure out how it happened and make it stop.

The court didn't say the child defamed another child. The school suspended the kids and then the parents grounded him. The lawsuit against the parents came later, and wasn't for defamation.
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Mike Masnick (profile), 17 Oct 2014 @ 1:51pm

Re:
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.

This is so incredibly not true.

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.

You're wrong.
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Anonymous Coward, 17 Oct 2014 @ 1:52pm

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.
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Christopher (profile), 17 Oct 2014 @ 1:53pm

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.
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Khaim (profile), 17 Oct 2014 @ 1:54pm

Re: Re: Re:
It's not hard at all if you own the account. Or in this case, if your child owns the account. They don't even have to talk to Facebook, they just need to tell little Dustin, "you're grounded for a week, and that page better be gone by then or you'll be grounded for a lot longer."
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Anonymous Coward, 17 Oct 2014 @ 1:57pm

Re: Re:
Not to say that this is in any way definitive, but this website at least places a solid "but", on the "you're wrong".

http://www.criminaldefenselawyer.com/resources/parents-civil-liability-a-childs-acts.htm

What' s really interesting is their example of parental liabilities being upheld in court happened in Geogia too.
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Khaim (profile), 17 Oct 2014 @ 1:59pm

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.
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Christopher (profile), 17 Oct 2014 @ 2:01pm

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.
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Gwiz (profile), 17 Oct 2014 @ 2:02pm

Re: Re:
Section 230 trumps such a law when it comes to speech, so nope.

Ok, fair enough.

Georgia also has a law that says that you are liable for torts of your children. (§ 51-2-2)

My argument is that even if Section 230 prevails and the child is found liable the parents are still liable anyways.
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Anonymous Coward, 17 Oct 2014 @ 2:03pm

I have little sympathy for the Boston family.

There is no mention in the appeals court judgement about attempts on the Boston's part to get Dustin's fake page removed beyond the school action.

If it was that hurtful, for that long, they would have done something more than spontaneously file suit.
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Anonymous Coward, 17 Oct 2014 @ 2:08pm

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...
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Khaim (profile), 17 Oct 2014 @ 2:12pm

Re: Defamation
Legal defamation isn't relevant, if we're talking about the original incident. The parents just have to be aware that their child has a "proclivity or propensity for the specific dangerous activity".

Kitchens v. Harris, 305 Ga. App. at 800 (Where an injured person claims that
a child’s parents negligently allowed their child to gain access to a dangerous
instrumentality, “the standard for imposing liability upon a parent for failing to
prevent the child’s action is whether the parent knew of the child’s proclivity or
propensity for the specific dangerous activity” that resulted in another’s injury.)
(citations and punctuation omitted); Garcia v. Grepling, 254 Ga. App. 219, 220 (561
SE2d 868) (2002) (In a case in which a child injured another, not through the use of
any instrumentality, but through an unprovoked assault, the plaintiff would be
required to show that the child’s parent was on notice of a dangerous proclivity or
propensity for the specific dangerous activity that resulted in the plaintiff’s injuries.);
McNamee v. A. J. W., 238 Ga. App. 534, 535-536 (1) (519 SE2d 298) (1999) (In a
case in which a child injured another, not through the use of any instrumentality, but
through having sex with another child, the plaintiff would be required to show that
the child’s parents should have anticipated that harm would result from the
unsupervised activities of the child and failed to exercise the proper degree of care
to guard against that result.); Saenz v. Andrus, 195 Ga. App. at 432 (2) (An
instrumentality is not inherently dangerous if such object is not likely to cause serious
injury when used in a proper manner and with due care but only becomes dangerous
if it is intentionally used to cause injury or is handled in a reckless and dangerous
manner.); Jackson v. Moore, 190 Ga. App. 329, 330 (378 SE2d 726) (1989) (In a case
in which a child injures another, but not through the use of a dangerous
instrumentality, “the standard for imposing liability upon a parent for failing to
prevent the child’s action is whether the parent knew of the child’s proclivity or
propensity for the specific dangerous activity” that resulted in the other person’s
injuries.) (citations omitted); Hill v. Morrison, 160 Ga. App. at 151-152 (Where a
person “entrusts another with a dangerous instrument under circumstances that he has
reason to know are likely to produce injury, [that person] is liable for the ensuing
consequences.” Recovery against a parent for the tort of a child “is permitted where
through parental negligence a child is permitted access to an instrumentality which,
if not properly used, is foreseeably likely to cause injury to a third person, [but] this
does not make the parent liable for an injury negligently inflicted by a child where
there is no dangerous proclivity known to the former and no reason to anticipate the
injury which in fact occurred.”) (citations omitted); Muse v. Ozment, 152 Ga. App.
896, 898 (264 SE2d 328) (1980) (Recovery is not permitted against a parent for a
child’s tort “where the parent has no special reason to anticipate” that the child may
harm another, either because of the child’s “known dangerous proclivities” to engage
in the conduct that caused the injury or because of the child’s “possession of
[inherently] dangerous instrumentalities[.]”); Assurance Co. of America v. Bell, 108
Ga. App. at 766-767 (4) (“[P]arents may be liable where they have entrusted a
dangerous instrumentality to their children or have failed to restrain their children
who they know possess dangerous tendencies.”) (citations and punctuation omitted).

See Jacobs v. Tyson, 200 Ga. App. at 123 (A jury could find that a child’s
parents were on notice of the risk of injury where they kept a pistol in their house
loaded and in a location where it was accessible to their 12-year-old while he was
present in the home with another child without adult supervision, since, “[u]nlike a
butcher knife or a golf club, a loaded firearm may be considered an inherently
dangerous instrumentality, in that, . . . it can inflict serious bodily injury by ‘going
off’ accidentally.”) (citations omitted); Mayer v. Self, 178 Ga. App. 94, 95 (1) (341
SE2d 924) (1986) (A jury could find that a child’s parents were on notice of the risk
of injury from a golf club swung by a 5-year-old child while playing with other
children, in the back yard, without supervision, where there was evidence that the
child’s parents knew about a previous incident in which their child had hurt someone
with a golf club.); McBerry v. Ivie, 116 Ga. App. 808, 811 (159 SE2d 108) (1967) (A
jury could find that a child’s parents were on notice of the risk of injury from a
shotgun “which was a dangerous instrument” furnished to a 13-year-old child by his
parents without reasonable instruction and supervision as to its use.).
Cf. Kitchens v. Harris, 305 Ga. App. at 800-801 (A child’s parents were not
liable for injuries resulting from the child allowing another child to use the family’s
all-terrain vehicle where there was no evidence that the child had ever used the ATV,
or allowed another child to do so, without the permission and presence of the parents
and therefore the parents were not on notice of their child’s proclivity or propensity
for the specific dangerous activity that resulted in the other child’s injury.); Garcia
v. Grepling, 254 Ga. App. at 220 (A child’s parents were not liable for serious injuries
the child inflicted on another student in an unprovoked assault, despite evidence that
the child had been suspended from school twice, “once for accepting another
student’s challenge to a fight, knocking the other student to the ground, and then
walking away and once for pushing one student, spitting on another, and using foul
language and inappropriate gestures during the taping of a video for a student
project,” since the previous incidents “consisted of rather typical schoolyard
altercations in which no one complained of any injuries” and therefore did not
constitute notice of any propensity of the child to engage in the specific dangerous
activity resulting in the plaintiff’s claim.); McNamee v. A. J. W., 238 Ga. App. at 536
(1) (Generally, Georgia law does not place a duty on parents to arrange for
supervision of their teenaged children while they are away from home. In the absence
of evidence that a child’s parents had any reason to suspect that while they were at
work he was having sex with an underaged girl in their home, the parents could not
be held liable for any resulting injuries based solely upon his engaging in that
activity, which he did without their knowledge.); Saenz v. Andrus, 195 Ga. App. at
432 (2) (A child’s parents were not liable for the injury inflicted by the child throwing
a butcher knife toward another, despite evidence that the child had previously thrown
a pocket knife at the wall, because that previous conduct did not demonstrate any
propensity to handle a butcher knife in a reckless and dangerous manner.); Jackson
v. Moore, 190 Ga. App. 329, 330 (378 SE2d 726) (1989) (A child’s mother was not
liable for injuries resulting when the child surreptitiously took car keys from the
mother’s purse and drove the car, where she had expressly forbidden the child from
driving and the child had never disobeyed that instruction before and therefore she
was not on notice of the child’s proclivity or propensity for the specific dangerous
activity that resulted in the plaintiff’s injury.); Muse v. Ozment, 152 Ga. App. 896,
898 (264 SE2d 328) (1980) (A child’s parents were not liable for injuries resulting
from the child’s use of a golf club that was stored in an unlocked building, where
there was no evidence the child had ever before taken a golf club out and swung it in
another’s presence and therefore the parents were not on notice of their child’s
proclivity or propensity for the specific dangerous activity that resulted in the
plaintiff’s injury.).

My point, with these walls of text, is that the judge carefully considered the relevant case law and the situation at hand, and he concluded that it's not impossible that the parents could be held liable for their child's behavior. But you write about legal issues all the time, I'm sure I don't need to also quote the high standards for granting summary judgement, or the equivalently low standards for denying it.
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Anonymous Coward, 17 Oct 2014 @ 2:30pm

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.
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mattshow (profile), 17 Oct 2014 @ 2:57pm

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).
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Atkray (profile), 17 Oct 2014 @ 2:59pm

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.
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Mike Masnick (profile), 17 Oct 2014 @ 3:38pm

Re:
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.

Where is the court order mandating removal?

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

There was no such court mandate.
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Mike Masnick (profile), 17 Oct 2014 @ 3:42pm

Re: Re: Re:
1. That's a page advertising criminal defense lawyers. Of course they're going to encourage people to be afraid.

2. The original claim was that parents are responsible, period.

There are *certain* situations in which parents *can* be responsible for *some* actions, given *certain* conditions. That's way far away from "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" as stated in the original comment.
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Anonymous Coward, 17 Oct 2014 @ 3:45pm

Re: Re: Re: Re:
My parents would have no idea how to even get to Facebook or what it is... should they be held liable in a similar situation? Is ignorance of facebook no excuse already?
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Anonymous Coward, 17 Oct 2014 @ 3:46pm

Re: Re:
Mike, given how downright byzantine the legal structure is in this country, which gets say, and order of magnitude more complicated by the various webs of scope (fed, state, county, etc), it might be prudent to not make such bold proclamations about what the law is and isn't.

I'm sure you've got a big brain in your skull there, but American law is a tangled jungle the size of Brazil, and no brain is that big. So in the face of such a colossal structure of knotted legalese, a little humility might be in order.

I believe it twas the great Lisa Simpson who so eloquently said: "It's better to keep your mouth closed and be thought a fool, than to open it and remove all doubt".
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Nathan F (profile), 17 Oct 2014 @ 4:55pm

Uh.. why didn't the parents of the girl get in touch with Facebook about taking down the account under their "impersonation" rules?
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Anonymous Coward, 17 Oct 2014 @ 5:02pm

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.
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G Thompson (profile), 17 Oct 2014 @ 11:42pm

Re: Re: Re: 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.
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G Thompson (profile), 17 Oct 2014 @ 11:47pm

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.
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G Thompson (profile), 17 Oct 2014 @ 11:59pm

Re:
You either believe in free speech at all times or you don't.. you cannot have it both ways when your feelings are hurt or you think "Oh but this is different because of [insert some psych mumbo jumbo marshmallowness here]".
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G Thompson (profile), 18 Oct 2014 @ 12:05am

Re: Re: Defamation
Each one of those cases deals with other cases that are all about criminal activity. Defamation is NOT criminal and was NEVER proven either (it was just assumed by the plaintiffs).

The judge should only have held that the parents were liable if it was proven criminal behaviour or PROVEN upon balance tortuous behaviour that caused and CONTINUES to cause significant harm. Otherwise the responsibility ends and again as I stated previously the school should also be held liable even if via a nominal percentage.

Also defining 'dangerous activity' is VERY arbitrary in this case and does not rely on the factors present in the cases the judge and yourself cited
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G Thompson (profile), 18 Oct 2014 @ 12:07am

Re: Re: Re:
Learn the difference between CRIMINAL and CIVIL harm.. Also the difference between illegal and unlawful (tortuous) behaviour and why responsibility structures are held to a higher standard would be good too!
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Anonymous Coward, 18 Oct 2014 @ 2:53am

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?
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Anonymous Coward, 18 Oct 2014 @ 3:00am

Re: Confused
Ummmm... Would you believe I grew up on the Arctic tundra? The Steppes? Anything to cover for my weird choice of "ledge" over "limb."
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Mike Masnick (profile), 18 Oct 2014 @ 4:36am

Re: Re: Re:
That's an awful lot of ad hominem without any refutation of what I actually said. Wanna try again with an actual citation, if you're so smart?
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Cyber Killer, 18 Oct 2014 @ 6:28am

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.)
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Anonymous Coward, 18 Oct 2014 @ 6:34am

Re: Re: Re: Re:
Oh but that's the point i'm trying to make, i'm not that smart and neither are you. No one is. The law is often arcane, esoteric, contradictory, and to the brim with hidden clauses and little known and less understood edicts. All while being subject to human interpretation and bias.

Take a look at this video: https://www.youtube.com/watch?v=mL9V9feZ75k

My point was simply that, when faced with this reality, it would be prudent to leave an out when making assertions even when you're 100% sure you're correct. So instead of "so nope" you might say "as far as my understanding goes". Or instead of "No, it's actually not", you might say "I don't think that's the case". And the reason for that is that no one can fully understand or know the law.

The legal system is 10 billion words wide and 200 years deep. When staring into that abyss, i'd argue, it's important to be humble.

As for the ad hominem attacks, i'm not sure where you're seeing those. I wasn't attacking you, nor was i trying to refute your argument. I was simply trying to point out that it's impossible for anyone, including you, to fully know the law and you might want to act accordingly as credibility and respect are fleeting.
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Anonymous Coward, 18 Oct 2014 @ 7:06am

Re: Re: Re: Re:
Either you have a real thin skin (which I don't see you doing usually) or you are off your game tonight. There is nothing in AC's comments that I would have considered being ad hominem. He is making an observation which is fair enough. One should be careful.

If anything, I would have considered his remarks careful chiding to be careful.

He has praised you but has also given you a warning.

Don't get offended.
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Mike Masnick (profile), 18 Oct 2014 @ 7:07am

Re: Re: Re: Re: Re:
My point was simply that, when faced with this reality, it would be prudent to leave an out when making assertions even when you're 100% sure you're correct. So instead of "so nope" you might say "as far as my understanding goes". Or instead of "No, it's actually not", you might say "I don't think that's the case". And the reason for that is that no one can fully understand or know the law.

Eh. When I have an opinion I don't hedge. I state my opinion. I find people who feel the need to hedge every statement are generally pushing bullshit.

Sorry.
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Anonymous Coward, 18 Oct 2014 @ 7:18am

Re: Re: Re: Re: Re: Re:
You didn't state it as opinion but as a fact,
Section 230 trumps such a law when it comes to speech, so nope.
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Ed (profile), 18 Oct 2014 @ 7:30am

If you're not going to accept responsibility for your underage children, then do the world a favor and don't breed. A vast number of our problems these days are the direct result of lazy parents who want someone else to take their responsibilities. Mike and others here who defend such actions are part of that problem. Disgusting.
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Mike Masnick (profile), 18 Oct 2014 @ 7:40am

Re: Re: Re: Re: Re: Re: Re:
You didn't state it as opinion but as a fact,

It is a fact. It's why State AGs keep trying to get Section 230 amended so that it doesn't trump state laws. Because right now, it *absolutely* does. No questions asked.

https://www.techdirt.com/blog/innovation/articles/20130619/01031623524/more-details-emerge-as- states-attorneys-general-seek-to-hold-back-innovation-internet.shtml
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Dan G Difino, 18 Oct 2014 @ 7:48am

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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Mike Masnick (profile), 18 Oct 2014 @ 7:49am

Re:
If you're not going to accept responsibility for your underage children, then do the world a favor and don't breed.

Do you have children?

A vast number of our problems these days are the direct result of lazy parents who want someone else to take their responsibilities.

I don't deny that many parents are bad parents and lazy, but it's bullshit to claim that parents are responsible for the actions of their kids. I recommend reading the book Far From the Tree to educate you.

Kids are their own people and often do things contrary to what their parents wish or taught them. Plenty of parents who raised kids under identical conditions have "good" kids and "bad" kids. And blaming the parents for their kids actions is just pure ignorance.

Mike and others here who defend such actions are part of that problem. Disgusting.

I'd argue that anyone who blames someone for the actions of another is the truly disgusting one.
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Anonymous Coward, 18 Oct 2014 @ 8:00am

Re: Re:
I'd argue that anyone who blames someone for the actions of another is the truly disgusting one.

That's because you haven't thought it through. If i train a child to be a murderer, and the child then goes and murders someone, guess what? I'm to blame.

Most people don't understand how culture and influence work. All those people in WW2 Germany who did those horrible things were acting under the influence of a culture ruled by hatemongers.

If you disagree, and argue that they were all just innately bad apples and that if you had been there (from birth) you wouldn't have made the same choices as them, then you're assuming that you have some innate goodness inside you that none of them had which would have steered you away from such actions. This mentality falls headlong into the black hole of the bias blind spot, and it lays bare the privileged perch from which you sit and view the world.
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Reality bites, 18 Oct 2014 @ 8:04am

The law was written by rich psycho's to protect their spoils nothing else.
The law is nothing to respect, respect is earned, the constant almost 100% failure rate of the completely parasitic legal life form is legendary in the universe.

Justice is available only by purchase, if money is not exchanged, justice is never done.
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Dan G Difino, 18 Oct 2014 @ 8:18am

7th graders and Contractual Law
Opening a Facebook account or a Yahoo account and being only 12 or 13 years old should not be possible as they are not old enough to be legally bound by terms of service. Are you kidding? I see that as a real liability for these online YooHoos.
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Anonymous Coward, 18 Oct 2014 @ 10:23am

Re: Re:
> Sorry, Mike, but you're absolutely wrong on this one.
>
> Parents SHOULD be held liable for their children's misdeeds. It leads to better parenting.

All the "better parenting" in the world won't stop some kids from bad behaviour. It's that "free will" thing all humans are blessed with.
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Anonymous Coward, 18 Oct 2014 @ 10:32am

Re: Re: Re: 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.
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Anonymous Coward, 18 Oct 2014 @ 1:16pm

Re: Re: Re: Re: Re: Re: Re: Re:
Mike, you have really missed the point here haven't you?
Eh. When I have an opinion I don't hedge. I state my opinion.
You didn't state it as opinion but as a fact,
Section 230 trumps such a law when it comes to speech, so nope.
So, either you are stating an opinion or a fact, which is it?

Either way, the AC was simply pointing out, what you regularly point out, that the interactions between various legislative and legal results are uncertain, vague and arcane and that nobody knows it all in full detail. The appearance of what some piece of legislation says can, in the end, hinge on some other piece of legislation in another venue, or even the interpretation of the words used within the legislation. We can see enough of this rubbish going on in the various courts, state legislatures and at the federal level. Weasels (politicians, lawyers and law enforcement) will try and often can find a way to get out of the consequences of what the various laws appear to say.
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Anonymous Coward, 18 Oct 2014 @ 4:22pm

Re: Re:
Ah, I misread, I guess initial notification was from the school, not the court. None the less, it seems likely that it's reasonable to have expected the parents to do something, rather than nothing when notified, which certainly seem litigation worthy, though not the 'defiance of court order' I had thought originally.
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Ed (profile), 19 Oct 2014 @ 6:38am

Re: Re:
Your "I know you are but what am I" childish retort only confirms to me that you're a immature person who is unwilling to accept the responsibilities of parenthood. You should not have had a child. You are the problem.

Yes, you are responsible for everything your child does while he/she is under your care. That's part of being a parent. If you're not willing to accept that, don't breed.

For the record, you're distorting this case for some reason. These parents in Georgia KNEW of the Facebook profile and yet did nothing for months. Their child had already been prosecuted for the offense. Efforts by the plaintiff to have the profile removed were ignored by the parents, so the only recourse was to sue them to get them to act. These claims that it is too difficult to get a profile deleted off Facebook are specious, at best. I guarantee their child knows how to remove a profile in less than 5 minutes.

Grow up and become a parent and stop abdicating YOUR RESPONSIBILITIES.
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Mike Masnick (profile), 19 Oct 2014 @ 7:20am

Re: Re: Re:
Your "I know you are but what am I" childish retort only confirms to me that you're a immature person who is unwilling to accept the responsibilities of parenthood. You should not have had a child. You are the problem.

I made no such response. And, I would suggest that you suggesting I'm a bad parent based solely on a comment on the internet speaks much greater volume about your analytical abilities than my parenting skills. My kids are doing just great, thanks.

Yes, you are responsible for everything your child does while he/she is under your care. That's part of being a parent. If you're not willing to accept that, don't breed.

This is neither legally, nor morally, sensible. Parenting under such a belief is a great way to make sure your kids never learn to take responsibility. Kids are individual actors with their own motivations. Parents should be teaching and educating and preparing kids. But they are simply NOT responsible for all actions of their children.

Continuing to push that line of thinking encourages enabling kids to abdicate their own responsibility.

These parents in Georgia KNEW of the Facebook profile and yet did nothing for months.

Not true. They grounded their son. At no point did they know that it was magically their responsibility to delete the profile.

Their child had already been prosecuted for the offense.

Suspended by the school and grounded by the very same parents. Not "prosecuted."

Efforts by the plaintiff to have the profile removed were ignored by the parents, so the only recourse was to sue them to get them to act.

Only course of action? You lack imagination.

Grow up and become a parent and stop abdicating YOUR RESPONSIBILITIES

I am a parent. I have not abdicated my responsibilities. But I also know that kids are independent beings with their own brains, and not automatons run by their parents.

I once again, highly recommend you read "Far from the Tree" and then come back and say whether or not parents are responsible for the actions of their kids.
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illuminaut (profile), 19 Oct 2014 @ 2:44pm

Re: Re:
People are mixing up criminal and civil law here. Defamation is a civil suit, and therefor parents can indeed be held liable for their little bastards. You're one of the first people to always point out that slapping on "on the internet" is not enough, so how exactly is this different from a kid throwing a baseball into a neighbor's window? As far as I understand the law (INAL), the parents have to cough up the money should someone bring a civil suit, no?

Now, in a criminal case you would right, parents normally are not held liable for their kids except under extreme circumstances.

The big question this case leaves unanswered is why on earth did the parents of the bullied kid not simply ask Facebook to remove the fake profile? They are usually very swift about these things. Why should they be allowed to sue the other kid's parents 11 months later, when they had this avenue open to them the entire time?
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Eldakka (profile), 19 Oct 2014 @ 6:26pm

Re: Re: Re: Re: 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.
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Eldakka (profile), 19 Oct 2014 @ 6:35pm

Re: Re:
To then try to punish them for not being frigging SEERS

err no, that is NOT what they are being (potentially) punished for.

They are being punished for what happened AFTER they had been notified.

AFTER they were notified they took insufficient actions to prevent ongoing harm.
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Eldakka (profile), 19 Oct 2014 @ 6:39pm

Re: Re: Re: Defamation
The judge should only have held that the parents were liable if it was proven criminal behaviour or PROVEN upon balance tortuous behaviour that caused and CONTINUES to cause significant harm.

But that is what's happened isn't it? This wasn't a sentencing hearing or a guilty verdict by the judge. The judge has allowed the case to go forward for a jury to make that determination.
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Eldakka (profile), 19 Oct 2014 @ 6:44pm

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.
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Ninja (profile), 20 Oct 2014 @ 2:25am

Re: Re: Re:
Not removing the Facebook page shouldn't be their issue

Facebook could be contacted and I'm sure that, given the circumstances they would remove it. But it's virtually impossible to know where the kid has been meddling. And chances are he set up the account and forgot about it. I've done it a whole lot when I were younger even though never while faking others identities. Throw the first rock those who never set up an anonymous account to flame or troll.

In any case the ruling is troubling indeed.
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Anonymous Coward, 20 Oct 2014 @ 9:25am

Re: Re:
Not all speech is free. We have a set of rules regarding what you can and cannot legally say. In this case, the speech was found to be illegal defamation. Once a court came to that conclusion (which has not been challenged), the free speech argument evaporated.
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Pragmatic, 22 Oct 2014 @ 4:53am

Re: Re: Re: Re:
There is nothing wrong with 'harassing' someone morally.

Whut?! Sorry, but "only those who can afford to sue can get this dealt with" isn't fair. If people believe and act on the lies being told, what then? This happened to me so it's a bit of a sore spot.

Parents are not able to continuously monitor Junior, I understand that, but they should keep an eye on him and such incidents should be monitored by all involved. The onus on removing the page should fall squarely on Junior, of course, but the parents should at least be given some guidance on what to do and assistance in enforcing disciplinary measures if required.

This kind of thing is not okay.
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