1.
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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. |
2.
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"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. |
3.
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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
online account. |
4.
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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. |
5.
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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. |