If you’re a parent considering legal action to protect your child from the ravages of online harassment, researching cyberbullying cases is a good way to learn about the legalities of cyberbullying.

In that spirit, let’s review a case, then examine the pros and cons of filing an Internet defamation lawsuit in response to cyberbullying.

Facebook Cyberbullying Lawsuit: The Alex Boston Case

The Alex Boston case is one of the first lawsuits to address the efficacy of filing a defamation lawsuit to combat cyberbullying.

Middle School Mean Girling, Via Facebook

Melissa Snodgrass, Dustin Athearn and Alexandra (Alex) Boston attend the same middle school. Apparently not fond of Boston, Snodgrass and Athearn made a Facebook page imputing their classmate and filled the page with “fat app” pictures of Boston and accused the teen of being a racist lesbian who was addicted to mental health drugs.

Other kids soon learned of the cyberbullying Facebook page. Before long, it allegedly had 70 likes.

Cyberbullying Facebook Page Leads To Suspension, But Not Removal of Facebook Page

School administrators learned about the Facebook cyberbullying page and suspended the perpetrators for two days. Despite the punishment, it remained up – for months.

Allegedly, the parents of neither Snodgrass nor Athearn forced their children to remove the page.

Facebook Bullying Leads to Defamation Lawsuit

Since the suspension didn’t result in the removal of the offending social media profile, Boston and her parents decided to take legal action and filed a defamation claim.

Appeals Judges Rule With Bullied Tween, Case Headed To Trial

The trial court judge initially dismissed the claim. But the Bostons appealed, and the appeals court overturned the verdict, explaining its position thusly:During the 11 months the unauthorized profile and page could be viewed, the Athearns made no attempt to view the unauthorized page, and they took no action to determine the content of the false, profane, and ethnically offensive information that Dustin was charged with electronically distributing. They did not attempt to learn to whom Dustin had distributed the false and offensive information or whether the distribution was ongoing. They did not tell Dustin to delete the page. Furthermore, they made no attempt to determine whether the false and offensive information Dustin was charged with distributing could be corrected, deleted, or retracted.

The case is headed to trial.

Alex Boston Lawsuit Significance: Defamation as a Way To Combat Cyberbullying

The Boston Facebook cyberbullying defamation case is significant on two fronts:

• It’s one of the first cases to use defamation as a way to combat cyberbullying; and
• The bully culprit’s parents are being held liable for their child.

What You Must Prove To Win A Cyberbullying Defamation Lawsuit

Each state has its own set of slander and libel laws, but all adhere to the overarching federal defamation law standards.

• Falsity: In almost all instances, statements cannot be defamatory if it they’re not true (yes, there are a few exceptions to this rule);
• Publication: Private gossip between two people is not defamatory under U.S. law. A comment must be posted, published, broadcast or stated in a public space for it to be defamatory.
• Harm: In the U.S., a statement is not legally slanderous or libelous if it does not cause material reputational or financial harm. It is not enough for one’s feelings to be hurt; a defamation verdict requires proof of actual harm caused by a false statement. That said, in defamation per se the plaintiff doesn’t have to prove harm, as it is assumed; a potentially crucial distinction in the Boston suit.
• Negligence: Plaintiffs can’t win a defamation lawsuit on a minor error; nor can they win if the defendants truly believe their own statements. As such, to garner a positive ruling, plaintiffs must provide evidence of either negligence or actual malice.

So let’s now consider the four pillars of defamation in the context of a cyberbullying case.

• Falsity: If a Facebook cyberbullying page doesn’t contain a false statement of fact about the target, only mean opinions, then it probably won’t pass the defamation test. However, in the Boston case, the culprits DID post false statements of fact (e.g., saying she took certain medications, labeling Boston as being racially insensitive, etc.).
• Publication: In a Facebook Cyberbullying lawsuit, publication is easy to prove. If it’s public on Facebook, it’s legally published.
• Harm: When it comes to cyberbullying defamation cases, harm may be the most subjective element. Of course being bullied is harmful to the psyche of a school-aged child. Heck, it’s even detrimental to adults. But does psychological harm qualify as “legal material harm?” It depends. Yes, psychological turmoil can and has qualified as material harm for the purposes of a defamation lawsuit. However, the argument can also be made that the harm inflicted by “bullying” is a natural aspect of growing up. Heck, some “experts” may even argue that learning how to deal with adversaries is a “necessary” part of healthy maturation. [Important Note: In no way are we saying that cyberbullying is good or productive. We believe cyberbullying is wrong and detrimental. We’re simply raising a point that the defense *could* argue in a cyberbullying defamation case.]
• Negligence: In cyberbullying cases, negligence is a snap to prove. After all, the only intent behind the profiles is causing hardship for the plaintiff. In other types of defamation suits, negligence is often difficult to prove, but not in Facebook cyberbullying lawsuits.

Judge to Parents: You ARE Your Child’s Keeper

When reporting the Alex Boston cyberbullying case, most media outlets led with a variation of:

“Parents Held Responsible for Child’s Facebook Page!”

(Cue millions of lawsuit-phobic parents sleuthing around Facebook to make sure their “sweet angels” aren’t the mean kids.)

Why did the judges hold the bully’s parents responsible? Simple: They didn’t make their kid take down the offending page after being made aware of its existence.

The Rub: Reasonableness Is Required For Defamation

One of the most difficult things about Facebook cyberbullying cases is just that – they’re about bullying.

Now, of course bullying is bad – both of the cyber and playground varieties. Bullies should be called out (and also evaluated to make sure their behavior isn’t a cry for help — but that’s another discussion for another day).

But there’s a legal hitch when it comes to using defamation to avenge cyberbullying.

And it’s this:

Judges and juries ruling on a cyberbullying defamation case can’t rule in favor of the plaintiff if the statements under review aren’t believable to a reasonable person. Which raises the question:

Are the puerile rants of a newly pubescent tween believable? Or, are they hormone-induced, hyperbolic outbursts?

If it’s the latter, case law demands that it’s not, technically, defamation because a “reasonable person” wouldn’t believe the statements to be true.

This is not to say that a defamation lawsuit will never work in cyberbullying cases. But the “reasonableness” requirement does present a high hurdle.

Speak With A Lawyer About Your Internet Cyberbullying Questions

If your child is dealing with Facebook cyberbullying and you’re ready to speak with an attorney about your legal options, get in touch with Kelly / Warner Law. Our firm has successfully represented many clients with various online impersonation and defamation challenges, and we’d love to do the same for you.

Reach out today to start solving.