Condo Media - May 2020 - 32

Risk and Reward

Stones
Sticks and

"They can't say that!" "Sue them!"
"Get a court order." "Make them stop!"
Most condominium attorneys have
received these instructions, delivered with
varying degrees of anger and frustration, by board members who have been
insulted, infuriated, or appalled by what
owners are saying about them.
The volunteers who serve on association boards-a thankless job, at best-
are, or should be, accustomed to being
criticized for what they are doing, aren't
doing, or aren't doing correctly. It is when
the criticism morphs into personal attacks,
allegations of wrongdoing, and questions about their motives and their ethics
that boards insist that their attorneys "do
something." Usually what they want their
attorneys to do is sue the offending owners for defamation. Their attorneys almost
always try to talk them out of it.
There is no question that disaffected
owners sometimes say hurtful, insulting,
and untrue things about board members,
Ellen Shapiro, a partner in Marcus, Errico,
Emmer & Brooks agrees. The problem,
she explains, is that those comments rarely
meet the legal definition of defamation.
Defamation covers two broad categories: Libel (written comments) and slander
(spoken ones). To prevail in a defamation
suit, plaintiffs have to demonstrate that
the statements:
Were about the plaintiff;
Were untrue;
Were made publicly;

ere made negligently-with what
W
the law terms "a reckless disregard for
the truth; and that
The plaintiff suffered harm as a result.

CONDOMEDIA May 2020

Because board members and association managers are deemed to be "limited
public figures," they must also prove that
the comments were made "maliciously,"
with knowledge that they were untrue.

A "TORTUOUS" PATH
There is nothing easy about bringing
a defamation suit, Shapiro says. "It is
a long and tortuous path" blocked by
many legal barriers. Primary among
them, the constitutionally protected
right to freedom of speech.
"People are entitled to express their
opinion," she notes, and an opinion, even
if patently untrue and uttered negligently,
may still be protected. A comment would
have to be "truly heinous," she says,
to be deemed defamatory. "You are a
pedophile," might qualify, but, "You're a
jerk," or even, "You are incompetent and
sleazy," probably would not.
"It is hard to prove that a single-line
statement is defamatory," Shapiro suggests. A series of statements followed by
a false accusation: "This proves that the
board is stealing money," might support
a defamation claim. But the board would
still have to prove that the accusation was
"malicious" and it would have to provide
evidence of damages.
"Malice is particularly hard to prove,"
Gary Daddario, also a partner in Marcus,
Errico, Emmer & Brooks, observes. "It
requires the defamation equivalent of a
smoking gun." An email from an offending owner, saying, "I know John didn't
really steal any money but I don't care. I
hate him and will do anything to have him
removed from the board," would certainly
provide evidence of malice, he says. "But
the odds that you will stumble across this
e-mail are about the same as your odds of
winning the lottery-probably worse."

WHY
CONDOMINIUM
ATTORNEYS
DISCOURAGE
LIBEL SUITS
Proving damages is no less difficult.
Board members might contend that
false statements caused them to lose
an election, "but they aren't paid for
their service, so where's the financial
harm?" Daddario asks. A board member
who owns a small business and loses a
client because of false statements made
about him or her might have a stronger
argument, Daddario agrees, but not an
easy one.
Defamation claims aren't just difficult
to prove, he cautions; they may also be
counterproductive. If the goal is-as it
should be-to calm the angry owners
who are saying bad things about the
board, "litigation won't help," Daddario
observes. "It is more likely to inflame
tempers than to cool them."
AVOIDING LITIGATION
Boards have to find other ways to deal
with the problem, Daddario and Shapiro
agree. They offer several suggestions.

Turn the other cheek, if you can.
The board's response, if any, should
depend on how other owners are reacting, Shapiro suggests. If they are ignoring what the dissidents are saying, the
board probably should, too. Responding
might attract attention the dissidents
wouldn't otherwise receive. In these
cases, she says, "I usually advise boards
to take the high road." This isn't always
possible, however. If the comments are
undermining owners' confidence in the
board or interfering with the board's
ability to govern, it may have to respond.
And if dissidents are lying outright-asserting that a renovation project is costing far more than it is, for example, "the
board should move quickly to correct the
record," Shapiro advises. Lies and misin-

Condo Media - May 2020

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