“What’s in a Name?” Quite a bit, particularly for association board members who have been defamed
The Community Association Law Blog
By Donna DiMaggio Berger
05 June 2017
When Shakespeare coined the phrase "the slings and arrows of outrageous
fortune" in Hamlet, he probably wasn't envisioning that sentiment could
apply centuries later to volunteer board members. However, the
Bard was opining that bad things can happen to a person and, in the
present-day context, if you serving on a community association board of
directors, those bad things can arrive in the form of defamation:
slander and libel.
Over the years, I've been contacted by far too many board members who
recount stories about horrible things which had been said or written
about them both during their board service and even years afterwards.
After the tale is told, the next statement is usually, "I want to sue".
This blog post is not about whether or not those harsh words were
warranted; it is about whether or not a board member can successfully
pursue a defamation claim against his or her detractors. Defamation is
a tort which refers to a false statement, either spoken (which is known
as slander) or written (which is known as libel) that injures someone's
Some types of false statements are considered so damaging that they are
deemed defamatory on their face (which is known as defamation per se)
and thus, do not require the plaintiff to prove the defamatory nature
of those statements or the plaintiff's damage. Typical examples of
these kinds of statements which are deemed inherently injurious to
one's reputation are:
Statements that injure another's reputation in his trade, business or
profession. For example, if the Board President is a licensed real
estate agent and a unit owner alleges that he has cheated other brokers
out of their fair share of commissions over the years, his reputation
in the real estate industry would be injured;
|Statements claiming someone has a "loathsome disease";
|Statements claiming that the person is "unchaste". In one community, a
manager was accused of engaging in an extramarital affair with the
community's landscaper and thus was the victim of slander per se;
|Allegations that an individual has been involved in criminal activity.
To state a cause of action for defamation in Florida, a plaintiff must allege the following:
The defendant published a false statement. The defendant's knowledge
that the statement was or was not false is not the crux of the issue;
the defendant's intent to publish the statement to a third party is.
The statement was made about the plaintiff.
The statement was made to a third party. The defendant must communicate
the information with an intent to have someone hear or read it. For
example, if the defendant made the statement with the reasonable
belief that no one was around to hear it but the statement was
overheard by a third party, that is not slander. The defendant must
intend to have the statement read or heard by a third party. In
addition, if the besmirched director is the only one who heard or read
the statement, that also does not constitute slander or libel.
The falsity of the statement caused injury to the plaintiff.
The following are some of the recognized defenses to a defamation suit:
Truth is a complete defense to any slander claim.
Opinion as a defense depends heavily on the credibility and reputation
of the person rendering the opinion. If a third party would
typically rely upon the person's statements, then simply prefacing the
defamatory content with an "in my opinion" qualifier will not be
sufficient to shield the statement maker from liability.
Consent is analogous to truth as an absolute defense. If the statement
maker had the subject's consent to publish the statements than that
consent will bar a slander action.
Poor Reputation is not a complete defense to slander but can be used by
the defendant to mitigate his or her damages in a defamation lawsuit by
proving that the plaintiff had a bad reputation for the character trait
Some problems when attempting to pursue a defamation lawsuit include:
|It can be difficult to prove that the statements are false. Statements
that a director is a criminal can be easily proven false by submitting
a clean criminal background as proof. However, statements that a
director tampered with election ballot envelopes is harder to address
unless the director can account for every step of the election process.
|"She said, he said" situations can result in a stalemate. It will be
necessary to have witnesses come forward when dealing with slander.
Libel is easier because the written material can be produced.
|Online defamation can be tricky. The plaintiff must prove that the
defendant was actually the one making the statement(s) and that may
require forensic investigation to uncover the identity of a particular
|Proving financial damage in a community association setting is not
easy. Community association directors are typically unpaid positions.
Unlike an employee who is slandered and subsequently fired as a result
of the statements made, what real financial harm does a board member
suffer as a result of statements made to ensure that he or she is not
re-elected to the Board? Emotional distress alone is not enough to mount a successful defamation claim.
|Directors may be considered limited purpose public figures rather than
private figures. My law partner, Howard J. Perl, authored an article
published in the Florida Bar's ActionLine periodical discussing the
growing body of national case law which is making it harder for
association board members to pursue defamation actions. According to
Howard, "to support a claim for defamation, a private figure need only
show negligence by the alleged defaming party, while a public figure
must show 'actual malice'." Board members can take themselves out of
the realm of a private figure and wind up becoming a limited purpose
public figure if they become "a key figure in a particular
controversy." For example, if a director takes a very aggressive and
outspoken approach on a particular capital improvement project in an
attempt to gain membership approval for same and a detractor decides to
respond by listing all the reasons that director should not receive
support for the project including a regurgitation of past
transgressions, the director may have to prove that the statements were
made with actual malice.
If you serve on your board and you have been the victim of defamation,
speak with an experienced association attorney who can walk you through
the steps discussed herein to determine whether or not you have a
viable cause of action.
Since I started this post with the Bard, I will end with him:
"Good name in man and woman, dear my lord,
Is the immediate jewel of their souls;
Who steals my purse steals trash; 'tis something, nothing'
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed."
—William Shakespeare Othello
Community association board members can be considered limited purpose public ﬁgures in defamation cases
Florida Condo HOA Law Blog
By Howard J. Perl
02 June 2017
There is a growing body of case law around the country which would make
it more difficult for an allegedly defamed community association board
member to successfully pursue his or her day in court. Is a community
association board member an average, private citizen or is a community
association board member really a special category of public figure
open to more scrutiny?
Can a community association board member be considered a limited
purpose public figure and therefore held to the higher standard of
actual malice when bringing a defamation claim in Florida? If so, what
are the criteria for establishing a community association board member
as a limited purpose public figure for defamation purposes?
To state a cause of action for defamation in Florida, a plaintiff must allege that:
• the defendant published a false statement;
• the statement was made about the plaintiff;
• the statement was made to a third party; and
• the falsity of the statement caused injury to the plaintiff.
There are two basic types of figures in regard to defamation cases
–private figures and public figures. Those who are not classified as
public figures are considered private figures. Assuming the four prongs
needed to file a cause of action are met, defending a defamation
lawsuit filed by a public figure is typically much easier than
defending one filed by a private figure. There are two types of public
figures recognized under defamation law:“public officials or public
figures” and “limited¬purpose public figures.”
All-purpose public figures are private individuals who occupy
“positions of such persuasive power and influence that they are deemed
public figure for all purposes. . . . They invite attention and
comment.” Examples of such figures would include President Trump,
Governor Scott, Bill Gates, Paris Hilton, any candidate for elected
public office, etc.
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