In the course of human events, it's almost inevitable that somewhere, at some point, tempers will flare and someone will say something awful about someone else. It can happen after the PTA meeting, in the gym, at the office...even in one's own co-op or condo building. Heated exchanges and personal vendettas are unpleasant and can make for an acrimonious building environment, which is bad enough—but what happens when the words do more than just sting or insult? What happens when it's more than just an offhandedly rude remark, or when it's ongoing?
The good news for boards and owners in co-ops and condos is that most of what is said and printed regarding life within the community—even when heated and contentious, and even if not entirely true—is broadly protected by law.
When it comes to board members and building residents, “They are a ‘qualified group,’” explains attorney Jim Samson, a partner in the law firm of Samson Fink & Dubow, LLP, in Manhattan. As such, they are protected by the so-called common interest privilege, which was contrived, Samson says, “to encourage open and free and frank discussion among members of a restricted group, like a group of shareholders or board members. Communication among them for the purpose of furthering the corporate business has a defense against libel and slander, even if it turns out to be untrue—as long as you’re not being malicious about it.”
It is maliciousness, when it becomes defamation, that is the stuff of which lawsuits are made. And sometimes the line between the open discourse protected by law and actionable defamation is thin. To stay on the right side of that line—i.e., out of court—it behooves board members to study the basics of the laws regarding defamation.
According to the pros, defamation occurs when you publicly malign someone’s character by accusing him or her of doing something that is reprehensible or criminal, and thereby damage their reputation. Written defamation is called libel, and defamation that is spoken is called slander. If they can substantiated in court, damages that result from such statements can result in heavy penalties.