4 minute read
The Dangers of Association Oversharing on Social Media
BY MARIA C. KAO, ESQ.
Historically, homeowners associations only needed to manage the physical real estate. Now, associations need to manage their virtual real estate. Popular social media apps and websites hosting resident chatter appear to be: Facebook.com; Nextdoor.com; Twitter.com; and WeChat. What are the liabilities and how does one manage the online gossip mill?
WATCH OUT. DON’T GET SUED, FINED OR JAILED.
This country prides itself on its First Amendment speech rights. Most know this, but do not know about unprotected speech. This article focuses on the speech unprotected from the law. Homeowners associations may be confronted with the following examples of unprotected speech: defamation; obscenity; threats; and intimidation (i.e., cyberbullying). Civil and criminal liabilities should be a matter of concern for homeowners associations and the members serving on their boards. Human nature instinctively drives a person to respond defensively to all negative media concerning him/her/they.
Unhappy residents posting vitriol about board members or community managers online have us wondering: “Where is the line?”
That leads us to defamation. Defamation is either libel (generally written) or slander (generally spoken) (Civil Code §44). The key elements of defamation are as follows: a false statement purporting to be fact; publication to a third party; at least negligence in the publication; and damages. It matters whether the subject is a public versus private figure or if the matter discussed is a matter of public or private concern (“Malice” must be proven in order to succeed when the alleged defamation is about an association director – a limited purpose public figure). Each one of these elements have been thoroughly litigated, but most people focus on the “falsity” of a statement without knowing about the complexity of analysis. Suffice it to say, the association’s counsel should be involved in determining the viability of a defamation claim.
Intentional infliction of emotional distress may also be a potential area of liability. A cause of action for intentional infliction of emotional distress exists when there is: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffers severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. A defendant’s conduct is “outrageous” when it is so “extreme as to exceed all bounds of that usually tolerated in a civilized community.” And the defendant’s conduct must be “intended to inflict injury or engaged in with the realization that injury will result.” (Hughes v. Pair [2009] 46 Cal.4th 1035,10501051). Prime examples include racial or sexual verbal attacks.
The above serve as only a couple categories of civil liability and readers should know that criminal liability may also be triggered depending on the facts. Generally, cyberbullying or online shaming pursuant to Penal Code Section 653.2 is a crime where a person with intent to put another in reasonable fear of his/her/their safety through electronic communications. This crime allows for penalties of $1,000 in fines and/or one year in jail. This crime does not apply only to internet communications, but applies sweepingly to all electronic communications (e.g., emails or text messages). Interestingly, this crime may also occur where electronic communications have a likelihood of “inciting or producing unlawful action.”
CORPORATE GOVERNANCE LEGAL RESPONSE.
In light of the liability related to those abusing association media outlets, how does a board and management respond and take charge of the operations of its virtual common area?
At the director level, a common tool that can be employed may simply be to adopt or revise the ethics policy for the board of directors. Many associations already require an ethics policy to be signed by its directors. Another way to assist directors in understanding how they should be communicating with the membership or its vendors is to educate and schedule board member training.
For the residents, a social media policy may be useful. Such a policy may be formally adopted and agreed to upon signing up for the association website. On a social media platform, the same policy may also be posted as “forum rules” or “moderator guidelines.” However, infrastructure should be developed to handle the moderation of the association media channels. This would likely need to be a collaborative effort between the board and its community manager. The rules would dictate when privileges may be suspended on that specific association media channel or take down posts that violate the rules. The social media policy may also make clear that directors will not be communicating with residents through internet channels and that decisions will still only be made at properly held board meetings.
OTHER BEST PRACTICES.
Many times, negative communications or toxic online culture occurs because residents complain about being in the dark. Resident engagement may assist, and common strategies are to solicit resident responses through online surveys, committees, or community events. Aside from consulting with the association’s counsel about association media issues, the association’s insurance agent should be contacted to check on defamation coverage in the policies.
No one wishes to silence anyone, but we know that unchecked words create real issues and liabilities. In the modern-day, internet influence and association media must be actively managed.
Maria C. Kao, Esq. is a partner at Berding & Weil, LLP. She specializes in corporate governance and enforcement litigation and has worked in the industry for 12 years. She works out of the firm’s Walnut Creek and Irvine offices.
