I heard the news today, oh boy
Habitat
By Richard Siegler & Dale Degenshein
16 December 2015
What happens when a disgruntled (or perhaps a “principled”) apartment
owner creates a website for the purpose of discussing events and
conditions in a building and allegedly posts defamatory statements? In
the case of Trump Village Section 4 and Igor Oberman v. Yuliya
Bezvoleva Aka Julia Bezvoleva, Inna Yeselson, Josef Stalin, Aborigen,
www.tv4news.org, two shareholders were sued by the cooperative
corporation, Trump Village Section 4, and its board president, Igor
Oberman.
The defendants, Julia Bezvoleva and Inna Yeselson allegedly started a
website for the purposes of discussing events and conditions in Trump
Village. According to the co-op, the website was designed to provide
information, announcements, and advice to and for residents of Trump
Village. The co-op asserted, however, that the website was not being
used as a forum to benefit the Trump Village community but instead was
being used as a site to post 19 separate defamatory statements
throughout a one-year period. Although the complaint asserts that
Bezvoleva and Yeselson authored the statements, there is no proof of
that since they were posted anonymously.
The Law
The co-op sued for libel. The court described the elements as a false
statement, published without authorization, constituting fault by, at
least, a negligence standard that causes special harm or is defamatory,
per se. The defendants sought to have the complaint dismissed, arguing
that the statements were protected by the common interest privilege,
which provides, in a nutshell, that when people share a common
interest, statements concerning that common issue are qualifiedly
protected. The rationale is that the flow of information between people
who share a common interest should not be impeded.
But the privilege does not apply when the information is published to
others outside the community. The court found that the website material
was not disseminated solely to those in Trump Village – there was no
password or other limitation as to who could view the website material.
Anyone who has access to the internet can see the information. Indeed,
the court adopted the co-op’s assertion that, when the words “Trump
Village” are typed into Google, the website appears as the fourth
choice on the first page of the search engine; when typing “Igor
Oberman,” that is the second result. The court concluded that Bezvoleva
and Yeselson were not shielded by the common interest privilege.
Moreover, the court pointed out that the common interest privilege can
be overcome by a showing of malice, that is, the author knew the
statement was false or he had a reckless disregard for the truth. There
was a history of ill-will between the parties. Yeselson and others in a
2012 complaint alleged that Oberman harassed Yeselson and attempted to
evict her. Thus, the court found – at this early stage of the
litigation – that even if the statements were protected by the common
interest privilege, there was a sufficient showing of malice that would
preclude dismissal of the complaint.
The Takeaway
As the appeals court told us in Levandusky v. One Fifth Avenue
Apartment Corp. 25 years ago, cooperatives and condominiums are
quasi-governments – “a little democratic sub-society of necessity.” The
board makes decisions for the building and, thus, the apartment owners.
And if an owner does not like the way the building is being run, there
are things he or she can do, all within the dictates of a democracy,
such as run for the board or propose a slate or complain to management
and the board. Depending on the nature and severity of the alleged
issue, he or she can call a governmental agency to complain about
building conditions or even start a lawsuit.
If owners want to solicit information and support from other apartment
owners, they can write letters, and even if the owners’ statements are
questionably defamatory, they may be protected by the common-interest
privilege if the complaining owners keep it “all in the family.”
In other words, the common-interest privilege may apply if the
information is communicated only to those within the community who have
an interest in those same common issues. What a complaining apartment
owner cannot do, however, is make (arguably defamatory) assertions on
the internet or in a publication for all to see.
The defendants in this case raised just about every possible defense to
the publication (and alleged authorship) of the statements on the
website, and the court analyzed, and disposed of, every argument.
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