When is an association potentially liable for its online communications?
As a general rule, liability for defamation may arise if you communicate to a third party a false and defamatory statement while knowing that the statement was untrue, recklessly disregarding whether or not the statement was true, or failing to ascertain the truth of the statement. Put another way, if you author it – you “own it”.
Compare the following two examples:
1. An official association representative, acting in an official capacity, posts the following comment to the Association’s Facebook page: “Dream Landscapers stink. The quality of their work gives the Board nightmares!” Dream Landscapers in fact does a great job. As a result, Dream Landscapers loses a number of valuable landscaping contracts. Dream Landscapers brings a claim for defamation against the association. Is the association potentially liable for defamation?
Here, the association’s statement was authored by an association representative, acting in an official capacity, the statement was communicated to third parties (published on the association’s Facebook page), and the statement was untrue. In this particular case there is also evidence that Dream Landscapers suffered economic harm directly as a result of the defamatory statement.
2. An owner posts the following comment to the association’s Facebook page: “Dream Landscapers stink. The quality of their work gives me nightmares!” Dream Landscapers in fact does a great job. As a result, Dream Landscapers loses a number of valuable landscaping contracts. Dream Landscapers brings a claim for defamation against the association. Is the association potentially liable for defamation?
Here, the association is probably not liable, as there is no evidence that the association authored the comment. The owner who posted the comment however probably is liable, and a best practice would be for the association upon request, to remove the offending comment.
When users post clearly offensive or derogatory comments, the instinct can be to edit them. Doing so could result in the association “buying into” the author’s liability for the comments. The best practice is to simply delete the comments, to the extent that this is technically feasible.
Addressing a rogue board members online communications
When controversial situations arise, boards have to make tough decisions, and it is not always possible to reach a unanimous resolution.
Board members of community associations have a legal relationship with the association and a corresponding legal duty to the association. There are three general components – acting in good faith, a duty of care, and a duty of loyalty. These duties are reflected in the Arizona nonprofit corporation act in A.R.S. § 10-3830.
This does not mean that a board member must agree with every decision of the board. It does, however, prohibit individual board members from taking actions that would be to the detriment of the association.
A director is to act “in a manner the director reasonably believes to be in the best interests of the corporation” according to the statute.
Arguably, posting comments online that undermine a decision that the board has made is not in the best interests of the corporation and a potential violation of an individual’s duty as a board member.
The best practice for avoiding social media liability is a combination of board training and adopting a social media policy. A suggestion for any board looking to jump start their social media policy is for board members to agree not to engage or participate in discussions online or in social media pertaining to or related to association business, unless otherwise directed to do so by the Board at a duly called meeting.
We hope that you found this information useful. We will be presenting in more detail on these topics at the upcoming board training event scheduled for May 20, 2017 at AAM’s corporate office.
By: Javier B. Delgado, Esq. & Mark K. Sahl, Esq.
Javier and Mark are shareholders of Carpenter, Hazlewood, Delgado & Bolen, LLP. Javier is licensed in AZ, NM, and UT. Mark is licensed in AZ and UT. They can be reached at 480.427.2800 and firstname.lastname@example.org and email@example.com.