When you were little, your mother might have told you, “If you don’t have something nice to say, don’t say anything at all.”
Momma was no fool. That was sound advice then, and it's even smarter in today’s litigious world, where what you say really can be held against you in a court of law. Crossing the line from what you might consider free speech or personal opinion into libel or harassment territory can cause not only serious acrimony among neighbors, but it can result in expensive legal consequences as well.
We all have occasional differences of opinion with our neighbors—and sometimes we might even dislike them outright. That being said, it’s one thing to call your neighbor, board president or manager a jerk, but it’s an entirely different issue to accuse him or her of being a criminal, or a sexual predator, and then distribute flyers to that effect under the doors of everyone in your building.
“We have had instances where a shareholder reported a board member to Child Services in connection with an alleged—and wholly meritless—child abuse charge," says Jeffrey S. Reich, Esq. of the law firm of Wolf Haldenstein Adler Freeman & Herz LLP in New York City. "We've had board candidates who have raised others' past criminal conduct, and an instance where one board member accused another on a public blog of battering his wife.”
All of the cases mentioned by Reich ended up in a courtroom, with accusations that the person who made the allegations slandered, libeled, or defamed the other person. Did they merely state—or could they state—what they honestly believed was true? Before that’s answered, a little legalese 101 is needed.
“Defamation is the generic term for false written and verbal statements that cause harm one way or another to a person,” says Marshall N. Dickler of the law firm of Dickler Kahn Slowikowski & Zavell, Ltd., in Arlington Heights. “Libel is a written defamation while slander is usually considered to be an oral defamation. There can be other types, but that’s the generic term.”
However, if what someone is saying about another is true, then indeed it may set that person free (“and the truth shall set you free”) from any legal repercussions. For example, one board member wasn’t seeing eye to eye with another board member, a blogger. The blogger was threatening to post that the board member had been arrested for assaulting his girlfriend, so he consulted Reich to try and prevent it.
“I asked him if there was an incident and he said yes,” says Reich. “As a result, there wasn’t anything we could do. It was the truth and truth is an absolute defense to any defamation claim.”
In today’s digital world where thoughts are tweeted, put on Facebook or blogged almost before they are even finished, attorneys are seeing more accusation of defamation cases. “More and more society is less civil,” says Reich. “When you are dealing with the Internet and when people hide behind the keyboard they are brave. When people are dealing with boards, it can be very emotional. This is your home and there’s a lot of emotion attached to that.”
But if someone can prove that they have been defamed and there are damages, the results can be costly for the accused. “If you were treasurer of the association and someone said that you were a mini-Madoff and it wasn’t true and that comment put you out of business, you could prove those damages,” says Reich. “Depending on the size of your business, the person who did the defaming can end up paying millions.”
In some defamation per se cases, the damages do not even have to be proven. James A. Slowikowski, who is also with Dickler Kahn Slowikowski & Zavell, Ltd., explains that a defamation per se presumes that the defamation caused the person harm, so that actual damages from the false statement doesn’t have to be proved. However, the false statement must meet various criteria: it must be a statement that the person who is being defamed committed a crime; words that the person is infected with a loathsome, communicable disease; words that impute an inability to perform a lack of integrity regarding the person’s office or employment duties; and words that prejudice the person or allege a lack of ability in his or her trade, profession or business.
“If the false statement is not one of these four things, actual damages caused by the false statement of fact must be proved,” says Slowikowski. “It cannot be opinion. This makes it difficult to prove a defamation case.”
Dickler explains however, that opinions can be protected and keep the person out of litigation. “If someone says, ‘It looks like money is missing and in my opinion it looks like John Smith, the treasurer, took it,’ that’s not defamation, but if someone says, ‘Money has been taken and John Smith took it,’ that can be defamation.”
For example, one board member didn’t like that a special assessment was made to pay for repairs of serious structural issues. “One resident put a sign in their car that the management stinks and fire management,” says Dickler. “We can do nothing—it’s an opinion, but you’re not going to shut the person up. Unless it causes harm to your business, it’s someone expressing themselves.”
But what are the legal ramifications of posting grievances on a public message or comment board run by a particular building or community? What about during meetings, or in leaflets or flyers circulated around a building? There are other possible considerations when it comes to defamation, including common interest theory, where unit owners or shareholders are sharing information about a member with others in the same association.
“For example, a board owner has accused a unit owner of not paying his common charges and told other people in the building,” says Reich. “The charges were dismissed because if the person accused is a unit owner or shareholder and are sharing information about a member. The ‘common interest theory,’ is where common people would share information they see as important.”
According to Charles "Chuck" A. LeMoine, Attorney at Law at Dykema Gossett PLLC in Chicago, every condo association has specific rules that would govern the action of condo owners and those may or may not apply to what’s being posted. “The condo board has the ability to pass rules and could approve a rule that would prohibit certain conduct,” he says. “However, the board cannot take away an owner’s First Amendment right of free speech. Not all speech is protected by the constitution, but it would depend on the type of speech, the context and any potential limitation by the board.”
LeMoine recently had one case where the purchaser of a new condo unit accused the developer of receiving kickbacks from an Internet supplier and posted these comments on the building listserv site. “The developer was prepared to sue the owner for libel when the owner publicly retracted the statement and the building owner published new limitations for the posting of information on the site going forward,” he says. “Too many people still have not learned to keep their mouth shut and watch what they say in cyberspace.”
If a resident is stating things about a developer or management company, it’s common that the company will file a lawsuit about the resident just to try to quiet them. However, there are laws protecting residents from these type of SLAPP lawsuits. SLAPP stands for a “strategic lawsuit against public participation” and is basically a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
In the Illinois case of Shoreline Towers Condominium Association v. Gassman, the condo association had rules prohibiting attaching anything to the exterior of apartment doors in the high rise building. The unit owner, being Jewish, placed a mezuzah outside her door which spawned other lawsuits. The association claimed damages, alleging that the unit owner defamed the condo board and a condo board member, interfered with its business and intentionally inflicted emotional distress, etc. by statements the owner allegedly made to a newspaper and others.
“The Appellate Court upheld the dismissal of the lawsuit, finding that it was a SLAPP suit prohibited by the Citizen Participation Act (the SLAPP suit law) and the owner was awarded her attorney fees,” says Slowikowski. “For example, if someone doesn’t want something rezoned, a developer can’t just file a suit to shut people up, saying that they are defaming him and his business. Joe Smith doesn’t have money so when he gets sued, he can’t fight a court battle. The court can use this law to throw it out and Smith can get his legal fees back.”
How then do you handle them?
If a board member or resident is on the receiving end of a potential defamation, there are several things they can do:
Respond: “If someone writes something on a blog, for example, publish a response and show how it’s wrong,” says Dickler.
Know what’s happening: Often, people confuse defamation with harassment. If a board or manager is harassing you with letters and voicemails, this may not be defamation depending on what is said and where it’s posted. Harassment is "repeated, intrusive or unwanted acts, words or gestures that are intended to adversely affect the safety, security or privacy of another, regardless of the relationship between the actor and the intended target."
Go to an attorney: If a board member, manager, or resident of a co-op or condo community feels they're being slandered, defamed, or harassed by another person in the building, give an attorney the information and see if there is any claim. “There may be a cease and desist letter sent,” says Reich. “Property manager wouldn’t do anything and doesn’t have legal training.”
Let it slide: “In a case where the sitting board member said the board was saying vicious things about the sitting board, we convinced the sitting board to rise above the mudslinging and felt it wasn’t necessary to hit back,” says Reich.
If you’re the one tempted to post something you think is true, think twice. “I can’t tell you how many times someone says to me they can prove something and they couldn’t,” says Dickler.
Even forwarding a damaging email that you received to third parties can get you in as much hot water as if you had written it yourself.
For example, a homeowner discovers a new message from a neighbor in her personal email inbox. The message’s subject is embarrassing, personal matter of another neighbor, which the homeowner finds humorous. She forwards the message to a number of her contacts and posts the entry to her social media accounts (such as on her Facebook wall.)
“Although the homeowner only posted the item, making no independent comments of her own, she soon finds herself a defendant (along with the original author of the email) against a lawsuit for libel and defamation of character after the email’s subject matter proved to be false,” says Jonathan H.F. Crystal, executive vice president, Frank Crystal & Company in New York.
After the homeowner's personal e-mail and computer files were subpoenaed, she is eventually dismissed from the lawsuit but not before incurring over $75,000 in legal fees and expenses. A very costly lesson, indeed.
So take Momma’s words to heart: Be careful what you say before you say it or you may regret it in the long run.
Lisa Iannucci is a New York-based freelance writer and a frequent contributor to The Chicagoland Cooperator.