Q. Some of the homeowners in our association participate in discussions on a “neighborhood” social media site that is not controlled by our association. Most of the posts I’ve seen are friendly, but of course there’s a fair number that are critical of just about everything — from the landscaping to board decisions and our management staff.
As a board member and property owner, I worry that these posts might paint a negative public picture of our community, and cause division among residents and problems with the staff. Sometimes the posts are unfounded rumors, or statements that are just not true.
Do you have any suggestions on how the board, or other residents who are generally happy with our community, can deal with this? As a board member, I don’t want to cause any kind of legal problem for the association by joining the conversation, if that would be a problem.
A. “For the most part, the postings people place on the internet are part of the rights to freedom of speech and expression enjoyed by all in America,” says Gary M. Daddario, partner at Marcus, Errico, Emmer & Brooks, PC, in Braintree, Massachusetts. “This is true of postings on existing social media and also on user-created websites. An association can receive a public ‘black eye’ if it is perceived as attempting to prohibit or unduly restrict free speech.
“That said, freedom of speech is not boundless. Most are familiar with the ‘you can’t yell Fire! in a crowded theatre’ rule. There are other limits to free speech as well. Whether on their own website or that of another, a person risks making actionable statements if they state as fact things which are demonstrably false. Note that ‘opinion’ is a defense to a slander or libel action. So, there is a significant legal difference between the statement, ‘I think the board is a bunch of embezzlers’ and the statement, ‘The board is a bunch of embezzlers.’ In any event, slander (which is spoken) and libel (which is written) cases are not common. This is largely because various portions of the claims (e.g., damages) are notoriously difficult to prove. Further, the law classifies board members as quasi-public persons, and as a result, the legal standards for slander and libel cases become even more difficult to prove.
“If legal actions in this area are uncommon and difficult to prove, how does an association deal with problematic communications? A primary and basic method of defense is to attempt to ensure that readers are not confused about the origin of the message. So, an association may benefit by exercising its intellectual property rights. Through basic filings with the state, an association can obtain intellectual property protection (e.g., trademark, servicemark) in its name and, if applicable, its logo. This will prevent others from using the proper name or the logo of an association. This, in turn, avoids confusion over whether certain messages are coming from the association or whether a website is the official website of a particular association. Further, once intellectual property rights are established, a party may protect their ‘mark’ by taking action against ‘confusing’ websites or communications of others. In other words, if the disgruntled gossipers are maintaining their own website, they would be prohibited from designing it in such a way that it confuses the public into thinking that it is the association’s official website. Further, those using similar names or designs may be required to place disclaimers (e.g., ‘This website is not the website of ABC Condominium and the opinions expressed here are not those of the Board of ABC Condominium’).
“As a practitioner, I can tell you that the most effective methods of dealing with these issues tend to be the most practical. For example, many disgruntled gossipers tend to simply fade away if denied the attention they so obviously seek. Another effective tool is positive communication from the association. Keeping the community as informed as possible about association business will limit the opportunity for gossipers to make claims and allegations about supposed wrongdoing by the board. Finally, while I would not recommend lengthy public displays of back-and-forth banter, a board can remedy a difficult situation by addressing a problematic communication. I recommend a memo issued to all owners from the board. Even if the identity of the offending party is known, I do not recommend that the board reference it in its communication. In fact, I recommend that such memos take the ‘high road’ by avoiding further confrontation and objectively informing the community. For example, a communication such as, ‘It has come to the Board’s attention that there is a question regarding the use of reserve funds. The Board reminds all owners that we act in the best interest of the community at all times. The Board invites anyone with questions as to association finances to pose their questions directly to the Board, and/or to review the association’s financial records.’ This type of message can serve to dispel rumors of wrongdoing while diffusing a potentially hostile situation.”