Last week, the Wall Street Journal law blog published a story titled "Parents May Be Liable for What Their Kids Post on Facebook, Court Rules" in which it stated "Parents can be held liable for what their kids post on Facebook, a Georgia appellate court ruled in a decision that lawyers said marked a legal precedent on the issue of parental responsibility over their children’s online activity." The story was then picked up and repeated by Smithsonian, and The Legal Satyricon (which criticizes the decision as incorrect because it failed to consider a certain federal statute).
The case is interesting but the problem is that the headline of the reported story is wrong. The court did not hold that parents can be held liable for their children's conduct; the court held the parents can only be held liable for their own conduct. That is a big difference.
As the court explains in its opinion, "liability for the tort of a minor child is not imputed to the child’s parents merely on the basis of the parent-child relationship." In other words, there is no vicarious liability for the tort of a minor. However, as the court continues, "[p]arents may be held directly liable . . . for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others," a duty which extends to those plaintiffs whose harm is foreseeable.
In the case, called Boston v. Athearn which is available here. a boy (Dustin, age 13) and a girl agreed to have some fun at the plaintiff's expense. Using some information obtained by the girl, Dustin created a fake Facebook page in the plaintiff's name where they posted racist, sexually graphic, offensive and false information including posts that suggested the plaintiff was a homosexual and a racist, that she took illegal drugs and that she was on medication for mental health disorders.
About six days after the Facebook page was created, the principal of the school had determined who had done it and imposed discipline. As a result, the culprit's parents were informed in detail of the children's conduct. Dustin's parents claimed they disciplined him, but made no effort to access the Facebook page or to delete it. The page remained available for almost a year.
In response to a motion for summary judgment filed by Dustin's parents, the plaintiffs argued that there were questions of material fact regarding whether the defendants were negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence and the court agreed.
Again, let's reiterate that the issue here is not whether a parent should be held liable for the conduct of a child. The issue is whether the court should impose liability for the parent's own conduct. More to the point, whether the court should impose a duty on the parents to do something more than what they did.
Because this is not a case where the court is trying to impose a particular parenting style nor passing value judgment on parental decisions on how to raise a child, the case is simple. The parents have a duty to act like a reasonable prudent person under the circumstances and, given the facts, reasonable people can disagree as to whether they did. I am not even sure we need more facts to decide the question. Let it go to the jury and let them decide.