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How a fake Facebook profile led to litigation

Last Friday the Georgia Court of Appeals issued the following opinion in the case of Boston v. Athearn: link.

The case involves some mischievous seventh grade students. A couple of seventh graders decided it would be fun to create a fake facebook profile for one of their classmates, a girl, they did not like.

Using the fake profile, the kids  became facebook friends with many of their classmates and teachers. Posing as their classmate, the children posted many derogatory and offensive facebook statuses and claimed that their classmate had a mental illness and took illegal drugs.

The Plaintiffs, who are the parents of the victim suing on the victim’s behalf, filed claims against the children and their parents for libel and intentional infliction of emotional distress. As the opinion states, a parent can be held directly liable for their child’s tortious behavior if the parent fails to supervise or control the child “with regard to conduct which poses an unreasonable risk of harming others.”

In this case, the parents were alerted of their child’s tortious actions in May of 2011. The parents did not direct the child to delete or remove the fake facebook profile but only grounded the child for a week. The fake profile remained active for 11 months after the parents were first notified of their child’s involvement in its creation.

One of the questions presented to the Court, was whether a jury could find that the parents were negligent in failing to compel their child to remove the facebook page once they learned of its existence.

The Court answered affirmatively. They found it undisputed that the child created the facebook profile with malicious intent and that the parents “continued to be responsible for supervising [his] use of the computer and Internet after learning that he had created the unauthorized Facebook profile…..Given that the false and offensive statements remained on display, and continued to reach readers…we conclude that a jury could find that the [parents'] negligence proximately caused some part of the injury [Plaintiff] sustained from [the child's] actions….”

Please don’t forget to visit my law office’s website: http://nehlaw.com/

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Terms and Conditions

Today I came across this article revealing that researchers have found it would take 15 work weeks for the average internet user to read all of the privacy policies he or she encounters in a year. That is an amazing figure but not overly surprising considering how many websites the average internet user access or subscribes to in a given year.

For example, I am sure that I agreed to a lengthy privacy policy when I bought this domain and when I downloaded the website’s theme.

The article got me thinking, though, about how long it would take the average internet user to read all of the terms and conditions, not just the privacy policies, of all the websites the user visits in a year.

Has anybody ever read the terms and conditions for a website, program, or application? LinkedIn’s user agreement, for example, is over 7,800 words (the privacy policy is about the same length). The terms and conditions on a website are just the latest versions of adhesion contracts – contracts where the consumer becomes bound by the terms if the consumer accepts the product (a/k/a shrink wrap contracts – the consumer becomes bound by the terms after opening the software package).

What has become known as browse wrap agreements – agreements binding upon the person accessing a website without deliberately consenting to the terms (you don’t have to hit “I AGREE”) – have become the norm. Many of these browse wrap agreements contain exclusive an jurisdiction provision and/or arbitration provisions. These provisions end or limit the judicial relief that would otherwise be available to the internet browser.

Because it is nearly unviversally accepted that these type of contract are enforceable, there are few local reported cases.

One that I found, from 2010 in the U.S. District Court for the Northern District of Georgia enforced the forum selection clause in Facebook’s agreement after a Facebook user brought a suit alleging copyright and patent infringement. The Court declined to address the case on the merits citing the user’s agreement to litigate only in Santa Clara County, California. In other words, the Facebook user couldn’t have his day in court in Georgia.

Given how much we surf the internet, we have likely unknowingly submitted ourselves to a plethora of terms and conditions and our only remedy for any wrong is likely in a far away locale.

 

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