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Parents Potentially Liable for Son's Fake Facebook Account, Georgia Court Rules

In a novel decision, a Georgia state appeals court has ruled that parents of a 7th grader who created a fake Facebook account mocking a classmate are potentially liable for negligence for not forcing him to close the account once they learned of it.

A three-judge panel of the Georgia Court of Appeals, an intermediate appellate court, unanimously revived the lawsuit the targeted student and her parents filed against the creator of the fake Facebook account, Dustin Athearn, and his parents.

The case had its genesis at Palmer Middle School in Cobb County, Ga., where according to court papers, Athearn and a female friend looked around their homeroom in May 2011 and asked, "Who do we hate in this room?"

The pair targeted a female classmate, Alexandria Boston, then created a false Facebook account in her name. Using an app called "Fat Face," they used a photo of Boston taken by Athearn and made the student look heavier. They added information to the Facebook profile that the student was gay and held racist views, and later added information that the girl took illegal drugs and was being treated for a mental health disorder.

Athearn and the fellow student then issued invitations from the fake persona for others to become Facebook "friends," thus spreading the page among the school community. After receiving a complaint from the Boston's parents, the school's principal learned that Athearn and his friend were behind the fake profile. They admitted their involvement and served two days of in-school suspension.

The school sent Athearn's parents a notice of the discipline, which explained he had co-created the false Facebook page, which remained active for nearly a year until Facebook deactivated it in 2012 soon after Boston and her parents sued the Athearn family for libel and negligence. (The other student and her parents were also named as defendants, but apparently faced a default judgement for not responding to the suit.)

A state trial court granted summary judgment to the Athearn family. But in its Oct. 10 decision in Boston v. Athearn, the Georgia appellate court revived the negligence claim.

During the 11 months the false profile could be viewed, the court said, the Athearns made no attempt to view it despite being made aware of it, "and they took no action to determine the content of the false, profane, and ethnically offensive information that Dustin was charged with electronically distributing," the court said.

"They did not tell Dustin to delete the page," the court added. "Furthermore, they made no attempt to determine whether the false and offensive information Dustin was charged with distributing could be corrected, deleted, or retracted."

"We conclude that a reasonable jury could find that, after learning on May 10, 2011, of Dustin's recent misconduct in the use of the computer and Internet account, the Ahearns failed to exercise due care in supervising and controlling such activity going forward," the court said.

That means the case will go back to the lower court for trial.

The court upheld summary judgment to the Athearn family on the separate issue of defamation. 

Edgar S. Mangiafico Jr., an Atlanta lawyer representing the Athearns, said he planned to ask the appeals court to reconsider the decision and, if that is denied, to ask the Georgia Supreme Court to take up the case.

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