Are HOA’s Liable for Online Comments? The Answer May Surprise You.
Before you jump right in, please reference our Social Media in the HOA, Part 1, which is a quick lesson on different platforms HOA’s are typically using as online forums!
Are HOA’s liable for what’s posted in online community forums? Well, it depends. We have outlined 3 quick tips on protecting yourself, and your HOA from liability. * Disclaimer; PDS is an Arizona HOA Management Company. This is not to be considered as professional legal advice. If you have specific questions on HOA law, contact your HOA lawyer or ask your HOA Management company for an HOA legal referral.
1. Understand the general rule of liability for defamation; Liability for defamation occurs when a person/party communicates to 3rd party a false and defamatory statement while knowing the statement is untrue. Digital Media Law Project defines of defamation case in Arizona here. Facebook could be the third party in a defamation case. If an HOA board member makes a false statement on a Facebook© page, the HOA could be liable. If a homeowner makes a defamatory comment on Facebook©, the resident may be liable.
2. Stay unified, even during contentious times; HOA Boards have to make tough decisions, and sometimes it is not a unanimous resolution. As tensions within the HOA board arise, remember that the board has a legal relationship with the community association. There are 3 components to the Arizona nonprofit corporation act (A.R.S. 10-3830) which are: acting in good faith, a duty of care, and a duty of loyalty. This means that individual HOA Board members, even when they disagree with the board, must refrain from taking action that could be to the detriment of the community association. Plainly stated, it’s not in the best interest of the association to post comments online that undermine board decisions.
3. Establish guidelines for the HOA Board for posting online; Board members (who are also homeowners) should participate in social media. You need to stay informed about events and issues happening in the community association. If you are tempted to initiate or comment, consider the liability as mentioned above. The board could institute a ban on HOA board members posting on behalf of the association, unless otherwise authorized by the board. If a ban can not be agreed upon during a meeting, at the very least, outline how comments can be professional, don’t violate HOA board confidence, and remain completely unoffensive to any party.
Again, seek out an HOA lawyer for specific information about HOA liability for online communication. We hope this article started a conversation in your board, in case you haven’t yet addressed social media etiquette!