Staff Attorneys, IBLS Editorial Board
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A great number of lawsuits have been filed recently in the United States claiming that personal profiles posted on social networking Websites contained false, defamatory, and misleading information about the plaintiff’s individuals. In many cases, the victims are principals and teachers, and the culprits are their students who use these sites as a form of retaliation. Thus far, the courts have not accepted the plaintiffs’ arguments that these activities are actionable.

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Individuals are posting false, obscene, or defamatory information about another in the guise of social networking Websites. In many of these cases, school principals and teachers are the victims. Since no legislation exists to penalize individuals who create false identities or post inaccurate or defamatory information on social networking Websites, the major option available to victims of such postings is to seek judicial redress based on tort theories including, primarily, defamation and libel. In the recent past, many such lawsuits have been filed in the United States, although these cases have not been successful.

There are instances where members of social networking sites decide to create false profiles of other individuals as a form of retaliation for past grievances, and these cases include some in which students use these false profiles to get back at their teachers and principals. For example, in Draker v. Schreiber, No. 04-07-00692-CV (Tex. App. Ct. Aug. 13, 2008), a high school assistant principal, Ms Draker, filed a lawsuit against two students and their parents based on the students’ posting of a false profile of Ms. Draker on the MySpace social networking site. Ms. Draker sued the students for defamation, libel, and intentional infliction of emotional distress. She alleged that the students’ parents were also liable for the negligent supervision of their children, who used their home computers to access MySpace and to create the profile. All of Draker’s claims were dismissed by the trial court on the basis that the postings the students made on MySpace were not objectively verifiable facts and thus were not defamatory. On appeal, summary judgment was affirmed as to the defamation claim, and since Draker failed to alleged facts independent of her defamation claim in support of her claim for intentional infliction of emotional distress, the trial court ruling as to this charge was also affirmed.

A similar lawsuit was filed by a high school principal, Eric Trosch, after a number of his students created a “mean-spirited” profile on MySpace, where, in the name of their principal, the students contended that Trosch used steroids, marijuana, and alcohol, and suggested that he had sex with students and brutalized women. Trosch sued for defamation. Although no final ruling has been issued in this case, the court denied the defendants’ motion to dismiss the case, but ruled that no punitive damages will be awarded to the plaintiff as the defendants did not engage in the alleged conduct maliciously.

Q:  How can victims of fake social networking profiles identify the perpetrators?

If a person wishes to identify the perpetrators who have set up a false profile account in her name, she must request the information from the social networking site itself. However, due to privacy issues, the networking sites may often show reluctance to transfer the perpetrators’ identities, absent a court order to transfer this information. This practice is based on the fact that most social networking Websites contain privacy policies that provide that no private identifying information about users will be released without a court order or a valid subpoena.

In a 2008 court ruling in the Marion Superior Court of Indianapolis, the judge ordered Facebook to release the user information of students who were involved in setting up a false profile of a high school principal.

Q:  What liability, if any, do parents face as a result of their children’s causing damage by settling up fake profiles?

In the case of Draker v. Schreiber, the principal sued not only the students who posted false material about her on MySpace, but also added the students’ parents as defendants in the case. She alleged that they were negligent in supervising the activities of their children as they accessed the Internet, and that because the parents were aware of their children’s hostile attitude toward the plaintiff, they ought to have been particularly observant of their behavior.

The court, however, did not hold the parents liable for their children’s activities in cyberspace. Thus, at the present moment, there is no precedent that parents will be liable for their children's acts of posting false and defamatory profiles on social networking Websites.

Q:  Did the judges in the case of Draker v. Schreiber express disapproval of the students’ behavior?

One of the judges in the Draker case, although concurring with the court’s opinion, nevertheless issued a reprimand to students, stating that “school children of this state should know that appropriating the identity of a teacher or school administrator to create a fraudulent [I]nternet social profile is unacceptable, and that engaging in such conduct will have consequences." This shows that although the court viewed the legal merits of the claim as insufficient to award damages, it nevertheless strongly disapproved the defendants’ behavior.

Staff Attorneys, IBLS Editorial Board

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