THE FACEBOOK PRANK

Boston v Athearn A140971 (Georgia, USA, Court of Appeals)

Judgment: 10 October 2014

When social-media prowess became a requisite parenting skill...

Facts: In a classic example of modern-day cyber-bullying, a 13-year-old high-school student and his friend agreed to have some fun at a classmate’s expense.  Using a computer supplied by the boy’s parents for family use, and the family Internet connection, the pair set up a fake Facebook account for their victim, in respect of whom they uploaded a photo altered by a ‘Fat Face’ application.  They added information to the fake profile that included racist viewpoints and a homosexual orientation, and posted graphically sexual and racist status updates and comments on other users’ pages. They further made out that the victim took illegal drugs and medication for mental-health issues. A number of Facebook friend requests were issued from the fake account to the victim’s classmates, teachers and extended family members.  Within two days, the fake account had over 70 Facebook friends.

The victim soon suspected the lead perpetrator after she recognised the profile photo as one he had taken at school.  The victim’s parents approached the school’s principal for help, who called in to her office the suspected perpetrators.  After admitting their involvement, the pair were assigned to in-school suspension.  The principal also informed their parents and sent home a form explaining the disciplinary action taken.  The boy’s mother signed the form.

However, the boy's parents took no action to acquaint themselves with what was posted.  Nor did they take steps to see if the information could be corrected or retracted.  Nor did they tell their son to delete the page.  Unbelievably, the unauthorised page remained accessible for almost another year, during which time the fake persona continued to extend and accept friend requests.  Other users viewed and posted to the page until the day before Facebook finally deactivated it – which, tellingly, occurred only after the victim’s parents had issued proceedings.  As a result of the boy's parents' inaction, the victim’s parents sued them on the basis that they were negligent in failing to compel their son to remove the page once they were notified of its existence, and also for failing to determine whether the information distributed could be corrected or retracted.

Held: A 3-judge panel held that the boy's parents were liable for defamatory content he had posted.

Under the law in Georgia, parents may be held directly liable for negligence if they fail to supervise or control their child with regard to conduct that poses an unreasonable risk of harming others.  The key question in this case was whether the parents had knowledge of facts from which they should have reasonably anticipated that harm to another would result unless they controlled their child’s conduct.

Discussion:

This is an apt example of the type of case that can be expected to arise more frequently in the social-media world.  The facts are typical of tweens' and teenagers' online activity, yet the outcome sends a clear message that parents cannot afford to simply bury their heads in the sands of technology.

Would the result differ under New Zealand law?

Substantively, probably not much.  However, liability in such a case would likely be founded exclusively in negligence, as opposed to defamation.  Under New Zealand defamation-law principles, it is difficult to see how the parents could be said to have published the matter complained of.  Yes, it was on their computer and their Internet connection, but that can’t be enough.  It would be absurd if cafés providing wifi were declared responsible for the actions of anyone using their networks.

Indeed, New Zealand courts have articulated defamation to be an intentional tort – there must be an intention to at least publish something, though it’s irrelevant whether or not that something published was intended to be defamatory.

And while New Zealand courts have held liable the creator of a Facebook page for posts other people make on that page once the creator has actual knowledge of those postings, it would be a significant extension of the law to hold parents liable as publishers for postings they had no direct control over – either at the time of posting or thereafter.

Putting defamation to one side, then, negligence would appear to be the most viable remedy.  Causes of action in negligence arising out of injury to reputation are precluded in New Zealand only where the matter complained of is true – see Bell-Booth v AG [1989] 3 NZLR 148 (CA).

But even under a negligence header, there are few cases in New Zealand that have considered parents’ liability for their children’s actions – and unsurprisingly none involving social media.  As with the present judgment, New Zealand cases that have considered parents’ liability have usually concerned the discharging of guns.  Still, some guiding principles can be drawn.

In 1922, a Court held liable a father who bought his 13-year-old son a gun after the son blinded another child with it.  The Judge noted that in determining the question of due care on the part of parents, “the Courts have judicially recognized certain well-known characteristics of children in general—their meddlesome curiosity—their tendency to indulge in pranks and playful mischief—their ignorance of the probable or possible consequences of their actions”.

The test for whether a parent should be held liable in negligence for their child’s actions was articulated accordingly: “whether a reasonable and prudent person ought to have foreseen that the actions complained of were a not improbable consequence”.

Applying that formula to the social-media realm, parents should ask themselves whether it would be a “not improbable consequence” that their child would defame another on e.g. Facebook.  

The answer will of course depend on a particular child’s characteristics and behaviour – which, one would hope, parents would be in the best position to make assessment.  Parents of particularly mischievous children might be justified in monitoring their child’s social-media activity for this purpose.

In reality, it may be asking too much in the context of social-media usage, to oblige parents to prevent defamations occurring on social media.  A child's social-media account obviously does not pose as much risk as a gun.  What is clear, however, is that parents should learn from those in this case who sat on their hands and failed to rectify their child’s actions.  Preventing your child from posting defamatory material is desirable, but acting promptly to do whatever is necessary to remove the offending material once notified of it, must be seen as a duty.

Click here for the judgment.