Parents of Facebook Phony Can Be Liable for Defamation


Greg Land , Daily Report

The parents of a teenager who created a Facebook page purporting to show a classmate making profane and racist comments can be held liable for defamation because they allowed the page to remain online for nearly a year after it was discovered, Georgia appeals judges have ruled.

The Oct. 10 decision clears the way for a trial on the issue, reversing a summary judgment victory the parents won last year from Judge Robert Leonard of Cobb County Superior Court.

Leonard had held that Michael and Sandra Athearn couldn't be held liable because the tool they allowed their 13-year-old son Dustin to use, a computer, wasn't necessarily dangerous.

But the Court of Appeals panel said that an otherwise common object "could become dangerous if it is intentionally used to cause harm or is handled in an improper and dangerous manner," or even "is no instrumentality at all."

"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," wrote Presiding Judge John Ellington, joined by Chief Judge Herbert Phipps and Judge Carla McMillian. "The Athearns contend that they had no reason to anticipate that Dustin would engage in that conduct until after he had done so. ... The Athearns' 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."

Natalie Woodward, who represents Amy and Christopher Boston and their daughter Alex, whose name and face were hijacked for the phony Facebook page, said, "The precedent was already there: When you fail to supervise children, when you know there is a harm and a risk and you don't remove it, and there's a subsequent injury, there's liability there."

Woodward is representing the Bostons with partner Corey Stern of Roswell's Woodward & Stern.

The Athearns are represented by Edgar S. Mangiafico Jr., a partner at Ragsdale, Beals, Seigler, Patterson & Gray, and J. Tom Morgan of Decatur. Neither was available for comment.

The appeals court decision said the case began in May 2011, when two seventh-graders at Palmer Middle School in Kennesaw, Dustin Athearn and Melissa Snodgrass, decided during homeroom "Who do we hate in this room?"

Upon deciding that Alex would be their victim, the judges wrote, they set up a phony Facebook page in the name of Alex, placing a photo Dustin had taken of Alex and altered with a "fat face" app as the profile picture. They added postings indicating that Alex was a racist and had a "homosexual orientation."

Dustin and Melissa also sent "Facebook Friend" invitations to many of Alex's classmates, teachers and family members, and within days the account had more than 70 "friends." The two teens continued to add to the page, posting status updates and messages on other users' Facebook pages.

Alex recognized the Facebook photo as one Dustin had taken and reported her suspicions to her parents, who contacted their school. When the principal questioned Dustin and Melissa, they admitted to the fraud and signed a written statement outlining their roles in it. Each was given two days of in-school suspension, and sent home with a form explaining the infraction and disciplinary action.

Dustin's mother signed the form, the order said, and she and her husband "disciplined Dustin by forbidding him for one week from seeing his friends after school," the appeals court wrote.

Viewing the facts in a light most favorable to the Bostons, Ellington wrote that the phony Facebook page remained online for 11 months, during which time "the Athearns made no attempt to view the unauthorized page, and they took no action to determine the contents of the false, profane, and ethnically offensive information that Dustin was charged with electronically distributing."

Woodward said the Bostons asked Facebook to remove the page but never received any response. It was only after the Bostons appeared on CNN to tell their story that Facebook agreed to take down the page, Woodward said.

In April 2012, the Bostons sued the Athearns and Melissa and her father, Randell Snodgrass. The Snodgrasses have not responded to the suit and have been found in default, Woodward said.

The complaint included allegations that the Athearns negligently failed to supervise Dustin and were liable for any of his defamation because it occurred at their home on a computer and Internet account they owned. The Bostons also claimed allegations of intentional infliction of emotional distress by all the defendants.

Sandra and Michael Athearn filed for summary judgment on the claims against them, and on June 6, 2013, Leonard granted it. (Woodward said the defamation claims against Dustin and Melissa remain pending.)

Georgia law is clear that parents are not liable for the torts of their minor children simply because of the child-parent relationship unless such claims are "based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality," Leonard wrote, citing the Georgia Supreme Court's 1971 opinion in Corley v. Lewless (227 Ga. 745.)

In cases where a "dangerous instrumentality" involved was a firearm or explosive, wrote Leonard, "liability is frequently imposed upon an offending parent, or at the least a jury question as to such liability arises."

"Where injury is caused by an instrumentality made accessible to the child by the parent, which if used properly is reasonably safe but which becomes a dangerous instrumentality when not properly handled, the question becomes one of ordinary negligence," Leonard wrote. "Here, the instrumentality is a computer the Athearns allowed Dustin access to. A computer is not an inherently dangerous instrumentality, such as a gun."

There is no case law in Georgia classifying a computer as a dangerous instrumentality, Leonard wrote. "This court also declines to hold that a computer and iPod in the hands of a 13-year-old are inherently dangerous instrumentalities," he said.

Leonard also ruled that the issue of whether the Athearns had a duty to remove the offensive material arose when the Athearns learned of the Facebook page "does not appear to be a question of fact for the jury to decide."

But the appeals court disagreed.

"We conclude that a jury could find that the Athearns' negligence proximately caused some part of the injury Alex sustained from Dustin's actions (and inactions)," the appellate panel ruled.

Woodward said the appellate opinion, while unique, does not open the doors to litigation every time a child is bullied online.

"This is a defamation case where the information was objectively not true," she said. "This is not a case where every time a kid gets picked on online they may be able to sue. If somebody says someone's ugly or fat, that doesn't mean they can sue. Just because someone says something mean doesn't mean it may not be true."

Atlanta attorney Cynthia Counts, whose practice includes defamation and libel cases, reviewed the opinion at the Daily Report's request.

"This is a very interesting case, particularly in light of public concerns about cyber-bullying," said Counts.

"Generally, the law is well settled that parents are not responsible for wrongs committed by their children except in cases where the negligence of the child is imputed to the parent, or it's based on the negligence of the parent-like sending a 6-year-old to school with a loaded gun.

"Here," she said, "the Court of Appeals seems to be suggesting that there may be circumstances in which an Internet-enabled computer, like a gun, can be an instrument of harm."

"It raises some challenging questions for parents about their responsibility for overseeing the online activities of their children," said Counts. "What is realistic in determining the limits of parental responsibility?"