ELLINGTON, Presiding Judge.
Alexandria Boston ("Alex"), a minor, through her parents Amy and Christopher Boston, brought this action in the Superior Court of Cobb County against Dustin Athearn, a minor, his parents, Sandra and Michael Athearn, and other defendants. The Bostons allege that Dustin defamed Alex when, posing as her, he created a Facebook account and profile and posted statements and photographs in that forum that constituted libel under Georgia law.
Under OCGA § 9-11-56(c)
Viewed in the light most favorable to the Bostons as the nonmovants, the record shows the following undisputed facts. In early May 2011, Dustin, who was 13 years old, and his friend, Melissa Snodgrass, agreed to have some fun at a classmate's expense by creating a fake Facebook page for that person. Dustin selected Alex, a fellow seventh-grader, as their target, and Melissa agreed. Melissa, posing as Alex, created a Yahoo e-mail account to use to create a new Facebook account, and gave that information to Dustin.
After Dustin created the account, both Dustin and Melissa added information to the unauthorized profile, which indicated, inter alia, racist viewpoints and a homosexual orientation. Dustin and Melissa also caused the persona to issue invitations to become Facebook "Friends" to many of Alex's classmates, teachers, and extended family members. Within a day or two, the account was connected as Facebook "Friends" to over 70 other Facebook users. Dustin and Melissa continued to add information to the persona's profile and caused the account to post status updates and comments on other users' pages. Some of these postings were graphically sexual, racist or otherwise offensive and some falsely stated that Alex was on a medication regimen for mental health disorders and that she took illegal drugs.
Alex soon suspected that Dustin was involved, because she recognized the profile photo as one he had taken at school. Alex's parents, Amy and Christopher Boston, approached the school's principal, Cathy Wentworth, for help. On May 10, 2011, Wentworth called Dustin and Melissa to her office; they admitted their involvement, and each signed a written statement.
Dustin's mother, Sandra Athearn, reviewed and signed the Referral Form the same day, May 10, 2011, and discussed the incident with her husband, Michael. The Athearns disciplined Dustin by forbidding him for one week from seeing his friends after school.
The unauthorized profile and page remained accessible to Facebook users until Facebook officials deactivated the account on April 21, 2012, not long after the Bostons filed their lawsuit on April 3, 2012.
1. The Bostons contend that there are questions of material fact regarding whether the Athearns were negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence and, therefore, that the trial court erred in
Under Georgia law, 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.
Where liability is based on parents' alleged failure to supervise or control their child, a key question is the foreseeability of the harm suffered by the plaintiff, that is, 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. Hill v. Morrison, 160 Ga.App. 151, 286 S.E.2d 467 (1981) ("[T]he true test of parental negligence vel non is whether in the exercise of ordinary care he should have anticipated that harm would result from the unsupervised activities of the child and whether, if so, he exercised the proper degree of care to guard against this result.") (citation omitted).
Given the nature of libel, the original tortious conduct may continue to unfold as the false and injurious communication is published to additional readers or the defamatory content persists in a public forum without public correction or retraction.
2. The Bostons contend that, "[i]n addition to their legal duty as parents, the [Ahearns] had a duty as landowners to remove the defamatory content that existed on their property[,]" citing the dissenting opinion of Presiding Judge Quillian in Southern Bell Telephone & Telegraph v. Coastal Transmission Svc., 167 Ga.App. 611, 621, 307 S.E.2d 83 (1983). In that case, Presiding Judge Quillian cited with approval Restatement (Second) of Torts § 577(2) (1977, updated June 2014), which provides that "[o]ne who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication." Further, "when, by measures not unduly difficult or onerous, he may easily remove the defamation, he may be found liable if he intentionally fails to remove it." Id., Comment p. See
The gist of this provision of the Restatement is that
(Punctuation and footnotes omitted.) Malla Pollack, "Litigating Defamation Claims," 128 Am. Jur. Trials 1 (2013, updated May 2014). Georgia defamation law embraces this principle regarding republication. See Smith v. Vencare, Inc., 238 Ga.App. 621, 626-627(2)(d), 519 S.E.2d 735 (1999); Baskin v. Rogers, 229 Ga.App. 250, 252, 493 S.E.2d 728 (1997).
Setting aside the novel and abstract questions the Bostons' argument raises regarding where Internet content is "exhibited,"
Judgment affirmed in part and reversed in part.
PHIPPS, C.J., and McMILLIAN, J., concur.
Cf. Kitchens v. Harris, 305 Ga.App. at 800-801, 701 S.E.2d 207 (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, 561 S.E.2d 868 (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), 519 S.E.2d 298 (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), 393 S.E.2d 724 (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 S.E.2d 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 S.E.2d 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.).
Restatement (Second) of Torts § 577, Comment on subsection (2), Illustration. See David Elder, "Defamation: A Lawyer's Guide," § 1:24 (updated July 2014) (discussing Restatement (Second) of Torts § 577 and related cases).