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Do you know what your kids are doing online? Of course you do. Or at least as Brittany Spears said: ‘you think you know, but you have no idea.” Kids are sneaky and it is doubtful you know everything they are doing online, either on their computers, at the school's computer law, or on the laptops, smartphones, Xbox, Playstation. and other electronic devices where kids frequently gather and communicate. This blog focuses on internet law and the potential liability to parents for their kids online behavior on websites such as facebook and twitter, not to mention email and texting (snapchat and “sexting”).
Creating fake facebook accounts that defame as a prank
In a recent case in Georgia involving negligent supervision, a kid created a fake facebook account and posted a picture of a girl (using a “fat face” app) and posted false comments which painted the victim as a racist person, taking illegal drugs, and as if she were promiscuous (as a lesbian). The prankster/bully also sent out “friend requests” to classmates and got 70 people to like the facebook page.
The victims parents notified the school principle which suspended the student for two days, but the website stayed up for about 11 months. The Georgia Court recently held that the Parents could potentially be held liable for not taking the post down after they were aware of the problem. This case should be a guide to parents to not only teach their kids right from wrong as far as online conduct is concerned, but to also take measure to protect victims of their kids behaviour. Obviously this court did not condone the “turning a blind eye” approach to the problem. As such, these parents could be held civilly liable. See Boston v. Athearn.
Here is an excerpt from the Court's recent opinion:
“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. The Ahearns contend that they had no reason to anticipate that Dustin would engage in that conduct until after he had done so, when they received notice from the school that he had been disciplined for creating the unauthorized Facebook profile. Based on this, they contend that they cannot be held liable for negligently supervising Dustin's use of the computer and Internet account. The Ahearns' 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.
This highlights the importance of being a “hands on” (or should we say a “mouse on”) parent. If you know your kids are doing something malicious online, you should rush to make things right. Our law firm can help you reach out and nip these legal problems in the bud before they become potentially disastrous and turn into a civil lawsuit.
Top five social media risks associated with online postings by your kids:
1. Internet Defamation
2. Placing others in a “false light”
3. Cyber-bullying (which can also lead to tort of intentional infliction of emotional distress)
4. Online hate crimes
5. Publication of private facts
This is not a full list of all digital risks but is a good starting point for discussion with your kids. Let's explore these topics in a little closer detail. These are topics you should discuss with your kids at dinnertime instead of the usual “so how was school today.”
What is defamation?
Defamation is basically where a person makes false statements of fact (statements that can be proven false) about a person and published to more than one person, and the false statement of fact injures ones reputation. Defamation is a “tort” (which is a civil wrong committed by one person against another) and is often times referred to as “the tort of the rich and famous” mainly because it is often difficult to prove damages. But where you have someone committing slander (oral defamation) or libel (written defamation) you might have a case for defamation, but be sure to be able to show:
1. the falsity of the statement (opinions are protected) and truth is a defense to defamation, so make sure the statement is 100% false., and
2. be able to show how you were economically damaged. Just saying “that defamed me” as we have heard many times, in and of itself is not enough.
Here are the California jury instructions for defamation. There are quite a few different instructions, so consult with defamation counsel in your case by filling out our form below.
With kids, they defame each other all the time (I won't go into common phrases kids use to defame each other as I am sure you can imagine if you have kids). If you are not sure contact an internet defamation attorney to make that determination. If you lost a job that is one good way to show damages.
What is “false light”
False light is another interesting tort. It is basically where a Defendant says (publicates) something that while not technically false, paints a false light on the Plaintiff. Note that the publication must be “highly offensive to the reasonable person” and also note that MEDIA DEFENDANTS (like Fox, CNN, MSNBC, and others are going to be given greater lattitude to report the news.
Here are the California jury instructions for the tort of false light defamation. If you feel this applies, contact us to discuss. We offer flexible fee arrangements.
California law on Cyberbullying
Cyberbullying statutes in California can be found in the California education code sections 32261, 32265, and 32270. These statutes discuss how a student can be expelled from school for engaging in cyberbullying.
In one atrocious California cyberbullying case a 15 year-old student had maintained a website for his future entertainment career. He was ridiculed and bullied by another student who posted:
“I want to rip out your fucking heart and feed it to you. . . . I‘ve . . . wanted to kill you. If I ever see you I‘m . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell.”
The Plaintiff brought suit against the student Defendant and his parents, alleging among other things, violation of California cyberbullying statutes, and California hate crime laws. The Defendant filed an anti-SLAPP claim (strategic lawsuit against public participation), which is a lawsuit that basically seeks first amendment rights for the speech at issue. The Court shot this down:
“We affirm because defendants did not make the requisite showing that plaintiffs‘ complaint is subject to the anti-SLAPP statute. In particular, defendants did not demonstrate that the posted message is protected speech. Further, defendants contend the message was intended as ?jocular humor.? Assuming the message was a ?joke? — played by one teenager on another — it does not concern a ?public issue? under the statute.”
The California Court of Appeals also discussed the concept and problem of cyberbullying:
“As a preliminary matter, we note that online bullying, called cyberbullying, happens when teens use the Internet, cell phones, or other devices to send or post text or 24 images intended to hurt or embarrass another person. Contrary to what cyberbullies may believe, cyberbullying is a big deal, and can cause a variety of reactions in teens. Many youth experience a variety of emotions when they are cyberbullied. Youth who are cyberbullied report feeling angry, hurt, embarrassed, or scared. Children have killed each other and committed suicide after having been involved in a cyberbullying incident. Cyberbullying is usually not a one time communication, unless it involves a death threat or a credible threat of serious bodily harm. In studies of middle and high school students, the most common way that children and youth reported being cyberbullied was through instant messaging. Somewhat less common ways involved the use of chat rooms, emails, and messages posted on Web sites.
Some authorities have stated that there are 5 categories of cyberbullies:
(1) power hungry (cyberbullies with the need to control others)
(2) revenge of the nerds (usually females or physically smaller males)
(3) mean girls (female cyberbullies)
(4) vengeful angels (protectors and retaliators)
(5) inadvertent cyberbullies
See University of Toledo's excellent analysis of cyberbullies. They talk about how bullies are much more apt to be bullies online as they would not want to confront people offline. Anonymity empowers certain individuals.
What is a “hate crime”?
California penal code section 422.7 allows a misdemeanor to be punished as a felony:
“if the crime is committed against the person or property of another for the purpose of intimidating or interfering with that other person's free exercise or enjoyment of any right secured to him or her by the constitution or laws of this state or by the constitution or laws of the United States, because of the other person's race, color, religion, ancestry, national origin, or sexual orientation…..”
Hate crime charges must be taken seriously. If you are charged with a hate crime, you should immediately contact us. Anyone can be charged with a hate crime and you should consult a civl lawyer before giving statements.
What is the tort of public disclosure of private facts?
This is another interesting tort your kids can get into if they are not careful. This tort involves disclosing facts, that while true, have no legitimate public purpose. For example, if one of your kids posts that a girl he slept with has herpes, while it might be true, this fact does not need to be disclosed publicly. Disclosing this type of fact, (similar to engaging in “revenge porn”) could land your kids, and possibly the parent, into a legal hotbed that completely upends your life and threatens your life and future.
Here are the California jury instructions on the tort of public disclosure of private facts. If you believe you are impacted by this statute, contact us immediately.
What is intentional infliction of emotional distress?
This is another “tort” that needs to be considered and is one of the Plaintiff's favorite tools. Intentional infliction of emotion distress occurs when someone intentionally causes severe mental or emotional distress in another person due to “extreme and outrageous behavior” (conduct that “exceeds all bounds of decency”). The kicker on this tort is you usually need to show medical bills and proof of serious injury – aside from hurt feelings.
So these are a few of the things you need to talk about with your kids, and discuss the important of social media etiquette. We talk in other blogs about avoiding criminal copyright infringement (for unlawful software piracy including downloading software, pictures, movies, books, ringtones, and other digital content without paying for lawful licensing), so this is another huge issue that needs to be addressed. Can you image iTunes, Microsoft, Adobe, or some other company suing you as a parent for your kids federal copyright infringement? Education is the key to avoiding civil liability that no one has time for.
Cyberbully Legal Resources
1. Parents in Georgia potentially liable for fake facebook page (which made the girl look like a racist and promiscuous)
Attorney Steve's top five tips to avoid Facebook liability
1. Talk to your kids about the seriousness of having good manners online. While it is tempting to lash out at other people when you don't agree with their opinions, when you make a negative comment on someone's facebook or twitter page, this can spark an online war (note that text and email messages represent incomplete thoughts and can often be misconstrued) and lead to charges of electronic harassment.
There is really no reason to get into a fight on facebook, text messaging, or twitter, but some people just cannot help it, and their ego tells them to keep fighting to prove you are right and they are wrong. This is a horrible approach and is similar to “road rage.” If someone cuts you off on the freeway, don't go into a fit, you never know when this is going to turn into a major problem.
If we think rationally, we might realize that just maybe the other driver is in a hurry, maybe they have an IQ of 25, maybe it is an older person who cannot see well, etc. Don't jump to conclusions. Just chill out and relax. The same advice should be applied online. Feel free to state your opinions, but don't get mad and bent out of shape if someone disagrees. In most topics in life, there are two sides to the coin, and no perfect answers. So just chill out. This conversation needs to be had with your kids.
2. Talk to your kids about the important of maintaining their good reputation online. In our digital world, many lawsuits are now posted online. So even if you win your defamation or parental negligence case, this “dirty laundry” gets aired and passed around and can effect not only your kids future (as far as school and jobs are concerned) but can potentially affect the parent and their jobs. Teach your kids right from wrong, and you can avoid this kind of negative publicity.
3. Talk to your kids about limiting conversation on topics such as politics (which for some very strange reason very few people have any capability of talking about politics without turning into meatheads – it is one of those word topics in life). Religion is another topic that you are best off avoiding. Teach your kids to talk about “news, weather and sports” as the news stations do. This keeps alot of people out of trouble.
4. If you learn of a problem, take immediate steps to rectify. Don't let a defamatory website sit up forever. Take it down.
5. Teach your kids tolerance. Our world is a “mixed bag of nuts.” We all have our opinions and beliefs, and right or wrong we have them. There is no book of “right answers.” In this “world of ideas” you need to be able to speak your mind, but also be tolerant of other opinions and beliefs. Also, pranks can get out of hand. So keep an eye on your kids and what they are doing on online social media websites such as facebook and twitter.
Parents would be wise to understand their cyber-liability risks due to the conduct of their kids online. Take time to teach your kids about online etiquette and the potential ramifications of their conduct. While having a good laugh is always fun, chose your pranks wisely and do not offend, harass, or bully people online (of offline for that matter). The stakes are too high.
If you need an internet lawyer, contact us to discuss your case at (877) 276-5084 or fill out the form below and have one of our internet civil litigation lawyers contact you, usually within the hour.