BOSTON Et Al. v. ATHEARN Et Al.
329 Ga. App. 890, 764 S.E.2d 582 (2014)
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Rule of Law:
Parents can be held directly liable for negligent supervision of their minor child's tortious online conduct if they are notified of the misconduct and fail to exercise due care to prevent the ongoing publication and resulting harm, even if the initial tort accrued earlier. However, parents cannot be held liable as landowners for defamatory online content created by their child unless they demonstrate the ability to control and remove that content from the public forum.
Facts:
- In early May 2011, Dustin Athearn, then 13 years old, and a friend, Melissa Snodgrass, decided to create a fake Facebook page to target a classmate, Alex Boston.
- Melissa created a Yahoo e-mail account for the fake profile and provided the information to Dustin.
- On May 4, 2011, Dustin used a computer supplied by his parents and the family Internet account to pose as Alex Boston and create a new Facebook account, using an altered photo he had taken of Alex.
- Dustin and Melissa added information to the unauthorized profile, including racist viewpoints, a homosexual orientation, and false statements that Alex was on medication for mental health disorders and took illegal drugs, and invited many of Alex's classmates, teachers, and extended family members to be 'Friends.'
- By May 10, 2011, Alex's parents, Amy and Christopher Boston, suspected Dustin's involvement and notified the school principal.
- On May 10, 2011, Dustin admitted his involvement to the principal, was assigned in-school suspension, and his parents, Sandra and Michael Athearn, were notified via a 'Middle School Administrative Referral Form' detailing his electronic distribution of 'false, profane, and ethnically offensive information.'
- The Athearns disciplined Dustin by forbidding him for one week from seeing friends after school but made no attempt to view the unauthorized page, determine its content, learn to whom it was distributed, or whether the distribution was ongoing, nor did they tell Dustin to delete the page or attempt to correct, delete, or retract the information.
- The unauthorized profile and page remained accessible to Facebook users, continuing to extend/accept 'Friend' requests and be viewed/posted on by other users, for 11 months until Facebook officials deactivated the account on April 21, 2012.
Procedural Posture:
- Alexandria Boston, a minor, through her parents Amy and Christopher Boston, brought an action in the Superior Court of Cobb County against Dustin Athearn, a minor, his parents Sandra and Michael Athearn, and other defendants.
- The Bostons alleged Dustin defamed Alex and intentionally inflicted emotional distress.
- Sandra and Michael Athearn (the Athearns) moved for summary judgment.
- The trial court, after a hearing, granted the Athearns’ motion for summary judgment.
- The Bostons appealed the trial court's grant of summary judgment to the Court of Appeals of Georgia (the current court).
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Issue:
1. Does Georgia law permit holding parents directly liable for negligent supervision when, after being notified of their minor child's tortious conduct (e.g., creating a defamatory online profile), they fail to take reasonable steps to prevent the ongoing publication of the defamatory material? 2. Does a landowner's duty to remove defamatory content existing on their property extend to online content created by their minor child on their computer, absent evidence that the parent had the ability to unilaterally remove the content from the public forum?
Opinions:
Majority - ELLINGTON, P. J.
Yes, Georgia law permits holding parents directly liable for negligent supervision when, after being notified of their minor child's tortious online conduct, they fail to take reasonable steps to prevent the ongoing publication of defamatory material. Parental liability for a minor child's torts is not imputed but may arise from parents' direct negligence in failing to supervise or control their child regarding conduct that poses an unreasonable risk of harm. The key question is the foreseeability of harm, meaning whether parents had knowledge of facts from which they should have reasonably anticipated harm unless they controlled their child's conduct. While the initial tort of defamation may accrue upon first publication, the court reasoned that the parental duty of reasonable supervision does not end with that first publication, as libelous matter can continue to unfold as it is published to additional readers or persists in a public forum. Given that the Athearns learned of Dustin's misconduct on May 10, 2011, but the false and offensive statements remained online and accessible for an additional eleven months, a reasonable jury could find they failed to exercise due care in supervising and controlling such ongoing activity and that this negligence proximately caused some part of Alex's injury. Therefore, the trial court erred in granting summary judgment on this issue. No, a landowner's duty to remove defamatory content existing on their property does not extend to online content created by their minor child on their computer, absent evidence that the parent had the ability to unilaterally remove the content from the public forum. The Bostons cited the Restatement (Second) of Torts § 577 (2) which states that one who intentionally and unreasonably fails to remove defamatory matter exhibited on land or chattels in his possession or control is liable for its continued publication. However, the court found that the Bostons failed to identify any evidence that the Athearns, apart from exercising parental power to control Dustin's conduct, had the ability to remove the defamation from Facebook. The only evidence presented was that Facebook officials stated that only the user who signed up for the password-protected account had the authority to remove the page. As 'publication entails the ability to control the libel,' and there was no evidence the Athearns could unilaterally take down the unauthorized Facebook page, the trial court did not err in granting summary judgment on this theory of recovery.
Analysis:
This case clarifies the scope of parental liability for negligent supervision in the digital age, establishing that such a duty can be ongoing when parents are aware of a minor's continuing tortious online conduct. It highlights the challenges of applying traditional tort concepts, like landowner liability for defamation, to the internet, where control over content often resides with third-party platforms rather than the individuals whose computers are used. The decision serves as a significant reminder that parents have an affirmative responsibility to intervene and mitigate harm once notified of their child's online misconduct, distinguishing between a parent's ability to control a child's actions and their ability to directly control content on an external website.
