Mass Email - HOA Liable?

Mark,
First, I am not a lawyer and I doubt one would give you free advice on this site. I am a board president and have been for a very long time on 2 different boards. Mass communications should be one-way notes with not reply to options. Not sure who set your up but that is a recipe for disaster. Fix it asap or take it down till it is fixed.

I think it would be an error to take one member of an owner's distribution list. Don't cause more problems that sounds like discrimination. You mentioned that the docs do not mention email, and most won't since most HOAs were around well before email became a way of communication. You will find have them updated much harder than correcting the procedure to not allow responses.

Are you on the board, MarkS? If so, what do your state statutes require to keep ownrs informed, etc?

You should send your emails so it is send only and no recipient can reply to the sender or anyone on the list.
Save that drama for a FB group and Oprah!

?

It can be one person and legally count as slander.

A HOA email list most certainly is a venue where defamation could occur and where the writer and the HOA could both potentially be held liable.

The three questions to ask are

-- whether the harm the OP suffered (1) can be quantified in dollars, pursuant to case law standards; or

-- whether the defamation is perhaps defamation per se (which is state dependent)

-- whether the HOA Board is stupid enough to want to risk testing this in court instead of just doing the easy and right thing (meaning use BCC).

People can look this up easily and see how wrong you are.

The problem is you think "publication" for the purposes of defamation means one thing. In fact, it means another.

Still lying as usual, keep wasting everybody’s time with AI which is worthless in this context.

Whether or not it fits the legal definition of defamation, the HOA is liable for anything published in its official channels - and that includes statements made by the membership to the membership. A mailing list (paper or electronic) or social media page that is used to communicate HOA business to the membership is almost certainly an official channel. This is one reason why our attorneys strongly discouraged the use of any platform that allows homeowners to post freely. The fact that the platform is closed to outsiders does not limit the HOA's liability.

As ElleN pointed out, it's one thing to show that someone is saying nasty things about you. Proving defamation is hard, and proving damages is harder. And it's surprising what is considered opinion that's protected by the First Amendment. "Joe Shmoe is a stupid crook" is OPINION. "Joe Shmoe robbed the gas station up at the corner on July 1 2024" may be defamation. But to win a defamation suit, Joe will have to prove that he didn't rob the gas station on that date, and he'll have to prove that the accuser knew that he didn't rob the gas station and accused Joe anyway in front of others. If it turns out that the accuser sincerely believes that Joe robbed the gas station on that date (it was actually Joe's twin), then that's not defamation. It's a really hard to win a defamation lawsuit.

There's also something known in legal circles as "the Streisand effect". Years ago Barbra Streisand was upset that a photographer was taking photos of her home and publishing them to a very small audience. So she took legal action against the guy. The resulting publicity let the entire world know that there were photos of her home, so that tiny audience ballooned into Everybody.

So taking action against an accuser can easily do more damage to the victim than the original accusation.

You also have the usual issue that you run up against with people who stir up dirt: they want the drama, and responding to them gives them exactly what they want. If you reward certain behaviors, you'll get more of them. Often the best way to discourage bad behavior is to ignore it.

*****

Back to Mark's original question:

The pandemic has encouraged many states to allow electronic communication of official HOA business, including online board meetings. There may still be some exceptions, such as requiring snail mail for annual meeting notices or collection and disciplinary actions (the legal stuff, in other words). Routine communications by email may well be OK regardless of what the governing docs say, since state law can override them.

The bad thing about electronic communications is that they allow people to say stupid stuff and shoot themselves in the foot with blinding speed. It's also a medium that, thanks to social media, has normalized rude and antisocial behavior.

So if I were in Mark's HOA, I'd be strongly encouraging the board to have a word with the association attorney about the risks they're running of allowing the membership to post anything to official channels. One-way communication from the board and/or community manager is fine - it's great, in fact, because of the speed and low cost of transmitting useful information. But if the board insists of making life hard for themselves, then they need to:

* have the attorney write up a Terms of Use policy for the electronic platform

* add some additional verbiage to the rules and regulations that addresses penalties for violating the Terms of Use

* enforce the Terms diligently

The function of the Terms of Use policy is to minimize liability. It must be enforced, otherwise it's just a piece of paper that won't minimize anything. The enforcement needs to include deleting of posts that violate the Terms and removal of access for anyone who repeatedly violates the Terms.

Given that you need to remove the repeat offenders' access, it should be clear that this sort of platform is not suitable for transmitting information that the HOA is obligated to provide to everyone.

It should also be clear that babysitting a platform that allows users to post is time-consuming and constant. Frankly, board members' time is usually limited, and they have more important things competing for their attention. It should be obvious that the potential downsides of using an interactive platform can easily outweigh any benefits it provides - and often does. Hence our attorneys' warning about avoiding this particular land mine.

If I were on the receiving end of false accusations, I'd probably ignore them unless they rise to the level where damages are assumed - eg. accusations of criminal behavior related to my profession. If I were concerned, I'd consult my own lawyer about steps I should take to protect myself. A cease and desist letter from my lawyer may be enough of a wake-up call to the board that they're flirting with trouble here.

On the subject of what "publication" means for the purposes of defamation, you misunderstood whatever attorney with whom you spoke.

People can google and see a guzillion law firm sites, case law sites and other legal sites and see that "publication" for defamation purposes means communicating to any third party, be that party in private to one person, in private to a group of people, or in public to millions of people.

Also, if the plaintiff is a board member, he would likely be considered a quasi-public figure in which case it would be even harder to prove defamation. He would also have to prove malice, that the claimed defamatory statements were made with the knowledge they were false.

If you can, post some published cases where a plaintiff was successful in a defamation claim against another member in a closed association internet group.

Find me just one law firm site that says the general legal rule for "publication" is what you say it is.

I can find you dozens that say "publication" here is what I say it is within five seconds.

Your routine source of information: Google and AI

Look up "common interest privilege."

Why is it you have a problem with what law firm sites and case law sites say?

Why is it you conveniently forget how you yourself often cite law firm sites and case law?

Why don't you put up (or shut up) something, anything that says "publication" for the purposes of defamation law is what you say it is?

Do you realize how low your credibility is around here?

Nice hijacking of the thread once again.

Read.

In addition to Cathy's recommendation, YOU can consider taking your own legal action against this person since you're the one he seems to be mad at. The guy doesn't seem to realize that his going off on you was exposed to the entire community, showing he's not very bright. Whether or not you can prove your case and win is another matter, so even if you can go after the guy in small claims court, it wouldn't hurt to chat with an attorney.

Meanwhile, I do hope you screen shot all this stuff, capturing the time and date stamps. Perhaps a strongly worded letter of your own telling him to rethink letting his mouth (or fingers in this case) write a check his ass can't pay (with a copy to your attorney) will cool his jets

Just came across this blog post that's related to this topic:

Managing Misinformation on Social Media

The blog post deals with platforms created by homeowners that are not official HOA sites but can give the mistaken impression that they are official. But the issues around inaccurate information are similar and may need a similar response. If nothing else, this gives boards a better idea of what they should avoid on the HOA's sites.

See: Using the Blind Carbon Copy (BCC) Feature in Email from the University of Pittsburgh

Using BCC is pretty standard business practice. Not only does it protect HOA members' personal email addresses, which may be protected info as it is in my state. It also helps avoid the dreaded Reply All Apocalypse (email servers have crashed under the weight of large numbers of employees using Reply All to respond to a contentious topic).

I will be happy to reply to the OP once he replies to my simple questions: Are you or have you been on your Board, MarkS? Thank you.

When a homeowner is dealing with a board that refuses to do something that they should do, it's going to boil down to live with it, fix it, or move.

In other words, how big is this problem and what are you willing *and able* to do to about it? Assuming the homeowner doesn't want to move, then living with it or changing it are the only options.

Assuming the homeowner isn't willing to live with it, then what has to happen to change it? Either the board has to see reason, or the board has to be forced to change course, or the board needs to be replaced. If personal persuasion doesn't do the trick, then the homeowner is left with going the legal route or partnering with other homeowners to replace the board with savvier people.

In both of these cases, the homeowner needs help: either a lawyer who will handle the legal paperwork or an external mechanism for dispute resolution provided by the state or fellow homeowners who agree that the status quo is a problem and needs to be changed. In evaluating these options, the homeowner needs to consider the cost of each (in time, money, effort, and impact on community relationships) and decide whether the potential benefits of the options justify the costs. Along with this, the homeowner should consider the potential costs - personal and to the community - of doing nothing.

All of these costs and benefits need to be weighed against the likelihood of success.

Aside from ignoring the whole issue, none of the options is fast or easy, monetary costs vary widely, and some are more doable than others.

Whatever a homeowner chooses to do, it can be easier to live with the decision if they treat this as a business problem and do the cost-benefit analysis.

I disagree.

You have been reading here for years. You say you served on a board for years, including significant time as treasurer. You "know," but does MarkS44? MarkS44 sits there presumably reading this "salad" of responses, a number of which wander off into the weeds and ignore the OP's facts and question.

I do not understand how MarkS44 could "know" at all which responses would actually help.

I know I would be disgusted as all get-out with this board. Harassment is common at HOAs. Some of it does have to be tolerated, in my experience. But sometimes, a line is crossed. It sure sounds like the line is either close to being crossed here, or it has been crossed.

The advantage of MarkS44 not just taking this is he could help the association in general be a better institution.

If MarkS44 wants a draft of a demand letter lite, I hope he will post back and say so.

For the greater part, nothing posted here about people's backgrounds is verifiable.

More importantly, many allegedly long-serving directors get things wrong all the time.

?

You said he knows what to do. I said he does not. If he knew what to do, he would not have asked for advice on what to do.

ElleN,

Yes. I would like the demand letter. (Sorry, I just retired so life was busy for a few weeks). Will follow daily.

Thank you!

Mark