Pavilion from the Ocean

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Defamation claims against boards on the rise

Peter S. Sachs

Be it a negative comment made at a meeting or a throw-away sentence in a letter from the board, if a comment made by a board member places an owner or other board member in a negative light, the association itself may ultimately be held responsible for making such a statement, whether true or not.

In Florida, defamation has become an increasingly popular cause of action against associations. Regardless of the truthfulness of negative comments, homeowners’ associations and condominium associations can be sued for such statements made by board members.

The key is to recognize defamation before it happens. Generally, in order to win a defamation lawsuit against the association, the plaintiff must prove:

1. The association and/or its individual board members made a false statement about the plaintiff;
2. The association and/or its individual board members published (written or orally) the statement to a third party;
3. The association made the defamatory statement with the requisite intent (negligence or malice);
4. The plaintiff suffered damages.

However, the elements of “defamation per se” (a cause of action less difficult to prove) are that a defendant’s oral (slander) or written (libel) publication of a statement to a third party:

* Tends to subject persons to hatred, distrust, ridicule, contempt or disgrace;
* Tends to injure a person in a trade or profession;
* Attributes to a person either conduct, characteristics or conditions incompatible with the proper exercise of a lawful business, trade, profession or office.

When published words concerning a person tend to degrade him or her, bring him or her to ill repute, destroys confidence in his or her integrity or cause a similar injury, such language is actionable per se.

In defending a case for defamation per se, legal injury is presumed or implied by the publication itself. In other words, the complaining party does not have to prove damages. In addition, the ultimate verdict in defamation actions is very subjective to a jury. If a jury is sympathetic to the owner suing the association, even if the owner cannot prove actual monetary damages, the association may ultimately be liable for a verdict in favor of the owner.

The best way for an association to avoid defamation claims is to be careful with what it states in writing. This can easily be accomplished by reviewing any statement drafts with the association’s attorney prior to it being published. “Writing” can also mean informal e-mail correspondence between board members and other owners. Some board members believe they can write anything they want from their personal e-mail accounts; however, in several instances the comments made in such correspondence can be imputed to the association and, in fact, are produced as evidence during litigation.

In summary, board members must remember that they are elected directors of a corporation; therefore, any statements they make about each other or other owners may be imputed to the corporation.

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