SCN: Supervision

[Steve]

x-no-archive: yes

=========================

Are Parents Legally Responsible for Their Children's Internet Use?   

(Carl S. Kaplan, NY Times)---Most people would agree that it's a 
good idea for parents to supervise their children's use of computers 
and the Internet. But what happens if a mother or father fails to do 
so?   

According to a state judge in Illinois, that parent can face trial in 
court.   

In a controversial decision issued November 28, Judge Ward S. 
Arnold of McHenry County, Ill., ruled that the father of a high school 
student accused of digitally grafting the picture of a female 
classmate's face to a hard-core sexual image displayed on a Web 
site can be sued for damages.   

In the case, a woman referred in court papers as "Jane Doe" 
charged earlier this year that the young man who created the Web 
site with the faked picture committed various wrongful acts, 
including defamation. She also charged that the boy's father, J. 
Bowen Palenske, of Woodstock, Ill., was guilty of defamation, 
invasion of privacy and two forms of negligence: negligent 
supervision of a child and negligent entrustment to a child of a 
dangerous article. The woman sought damages of more than 
$50,000.   

The father moved to dismiss the claim against him, but after a one-
hour oral argument Judge Arnold left the negligence claim in place. 
He dismissed the privacy and defamation counts.   

Lawyers for the father and Jane Doe said that the negligence case 
against the father will soon enter the pretrial discovery phase. A 
separate case against the son is also pending.   

Told of Judge Arnold's ruling, some lawyers applauded his decision, 
claiming that computers can be dangerous devices and that adults 
are too often lackadaisical about the mischief children can do online. 

But other lawyers criticized the ruling harshly, saying that a 
computer is no more dangerous an article than a pencil. Both 
objects may be abused to create a defamatory statement, but it 
would be silly to haul parents into court on charges of negligently 
supplying their children with writing instruments.   

In addition, critics said the decision places too much of a burden on 
parents to monitor and direct their children's computer activities, 
which are often hidden from view.   

"As a parent, this ruling scares the hell out of me," said Mitchell A. 
Orpett, chair of the tort and insurance practice section of the 
American Bar Association and a partner with Tribler Orpett & Crone, 
a Chicago-based law firm.   

"To suggest that a parent is going to be liable for anything and 
everything that a child may do on a computer is very tough," he 
added. "Computer use is a difficult thing for a parent to control."   

According to an amended complaint filed on July 31, Jane Doe is the 
fictional name of a child in McHenry who attends Marian Central 
Catholic High School in Woodstock, Ill. J. Bowen Palenske, a 
resident of Woodstock, is the father of a son who also attends 
Marian Central.   

On March 13, the son created an Internet Web site available to the 
general public, according to the papers. On the site, he placed a 
picture of Jane Doe's face carefully over the face of a nude woman 
who was engaged in a sexually explicit act. Under the composite 
image he wrote a caption identifying the subject as Jane Doe "in a 
porn gone horribly wrong." In addition, the son published on the 
Web site other allegedly defamatory statements about the woman, 
according to the complaint.   

In her papers, Jane Doe charged that the home computer and online 
connections used by the son were owned and controlled by the 
father. She also claimed that J. Bowen Palenske had notice prior to 
February that his other, older son had created a "negative and 
harmful" Web site that was eventually terminated at the behest 
school authorities.   

In arguing for dismissal of all counts against the father, Carol A. 
Hartline, Palenske's lawyer, wrote in court papers that under state 
law there could be no claim for negligent entrustment unless the 
item provided by the parent to the child was a "dangerous article," 
such as a gun. She suggested that a computer is benign.   

"There really isn't a case in Illinois that addresses whether a 
computer is a dangerous article," she said in an interview.   

Hartline also argued that for Jane Doe to state a legal claim under a 
theory of negligent supervision, she had to give facts that could lead 
a court to conclude that her client had notice that his son would 
likely engage in a harmful act, thereby imposing upon him a duty to 
step in. But, she asserted, there was no mention in the complaint 
that the father had any notice about the younger son's propensities.  
 
Jane Doe's attorney, Jeremiah P. Connolly, argued that Mr. 
Palenske had sufficient notice that his computer could be used by 
his young son to injure someone at the school, given the recent 
history of his other son's alleged use of the computer to create a 
harmful Web site.   

Connolly also said that the computer was used under the nose of the 
father, and that the Web site about Jane Doe was up for a few weeks 
before it was taken down.   

Finally, he asserted that the computer is not a cute and safe 
machine. "It's not inherently dangerous, like a lawn mower," he said 
in an interview. "But it has great potential to be dangerous. In my 
opinion, parents have a duty [to supervise] when they control an 
item, when they have notice that the item in the past has caused 
harm, and when that item is being continually used to cause harm."   

Some legal experts dispute Connolly's view about the 
dangerousness of a computer. Michael J. Polelle, a professor at 
John Marshall Law School in Chicago and co-author of "Illinois Tort 
Law," said that under state law a "dangerous article" is usually one 
that by its nature is dangerous to life or limb, like dynamite caps. He 
said he was aware of one case where a child whacked a victim over 
the head with a golf club. The negligence claim against the child's 
parent was thrown out because the court found that golf club was not 
inherently dangerous, he said. "I'm very surprised" by Judge 
Arnold's ruling, he added.   

Victor H. Polk, a partner at Boston-based Bingham Dana & Gould 
who in the past has litigated cases on behalf of celebrity clients 
whose names were used without authorization on X-rated Web sites, 
said that he believed it is vitally important for parents to supervise 
their children's Internet use. "But should parents have a legal duty 
to do so? That would be bad public policy," he said, adding that one 
of the virtues of the Internet is allowing children some level of 
freedom.   

Besides, added Polk, it is "truly outrageous" for a judge to draw an 
analogy between a computer and a really dangerous item such as a 
gun or a knife. "Yes, the pen is mightier than the sword, but we have 
never regulated the pen," he said. "A computer at some level is 
more dangerous then a pen but it really is the same type of 
instrument as a pen."   

Regardless of the outcome of the case, there will be more suits 
brought against parents for the online activities of children, 
predicted Bruce Taylor, president and chief counsel of the National 
Law Center for Children and Families, a pro-family group in Fairfax, 
Virginia. He said that online sexual misconduct by high school 
students was "rampant."   

Copyright 2000 The New York Times Company  





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