Defamation 8-17-17

When accusations fly…is it really defamation?

Unfortunately, board members of community associations are sometimes loathed by some residents. Issues can arise at any time, especially during board elections. When insults and accusations fly, they sometimes cause serious damage to the reputations of those on the receiving end. In some cases, board members go on to sue owners or residents for defamation. But, what exactly constitutes as defamation? We spoke to Attorney Robert C. Griffin of Griffin Alexander, PC in Randolph, New Jersey to shed some light on this topic.

According to Griffin, defamation has two aspects, slander and libel. Slander is defamation by spoken word while libel is defamation by written word. And although a board member can sue for defamation, the standard is high, said Griffin. 

A board member, Griffin explained, is a limited purpose public figure. “Having put themselves in a public light as to certain association issues, they are more vulnerable to comment than would be a private homeowner who has not put himself in the public limelight with respect to his association,” he said. “What it means to be a limited purpose public figure is that you can’t sue for defamation unless there was actual malice. Actual malice requires a plaintiff (in this case, the board member) to demonstrate by clear and convincing evidence that the alleged defamatory statement was made or published with knowledge of its falsity or with reckless disregard of the truth.”

In order for there to be defamation, the statements, whether spoken or written, have to be untrue. “Truth is a defense,” explained Griffin. Therefore, for the claim to be actionable, the board member must prove that the statement or publication was made with a high degree of awareness of its probable falsity or with serious doubts as to its truth, he noted. 

In a community association, typically the statements are published throughout the community. For example, a resident who has an issue with a certain board member might post a flyer on the community bulletin board, slip a note under residents’ doors or send a letter to all unit owners. For a statement to be considered defamatory, it must have been published to more than just the board member it is about. If a person writes a letter to a board member containing false statements about that person, but it is not published to third parties, it is not considered defamation, explained Griffin. At the same time, to be actionable, verbal statements must also be made to more than just the board member, such as at a public meeting.

According to Griffin, the malice that is necessary for the claim to be actionable is often found when a person accuses someone of a crime. “Allegations of criminal action are usually considered slander or libel per se (by itself, without proof of actual damages),” said Griffin. 

An example would be the accusation of an offense that would be chargeable as an indictment, which is a crime of the first, second, third or fourth degree. “You don’t have to state the exact charge,” Griffin added. “If you call someone a thief, you’ve implied larceny or theft.”

Likewise, if someone calls a board member a fraud, that person has implied theft by deception.  “You don’t have to use the exact charge in spoken or written word,” said Griffin. “Stating conduct that constitutes criminal activity is enough.”

Additionally, “calling into question a person’s ethics as a professional is not permitted and is considered malicious conduct,” Griffin noted. For example, if a board member is an attorney and someone accuses him or her of breaching the attorney code of ethics while a board member, that would be actionable. 

One recent case of malicious conduct Griffin shared had to do with a board member who sued a non-resident, non-unit owner for writing untrue statements about her in her board member capacity. The person did not even have a stake in the issue that was being debated within the community. However, this person not only sent letters to the board member, but also published statements to the community. He also made false statements to the board member’s employer. When the board member still did not stop her actions with regard to this particular community issue, the person then threatened her employer if the employer did not get her to stop. In that instance, it was obvious the person was being malicious and the court awarded damages to the board member, said Griffin.

“However, that’s not really the customary and usual kind of case we see,” Griffin noted. He explained that typically a community member makes a false allegation against a board member and the board member tells the person if the allegation is made again, there will be a lawsuit. Then when the allegation is made again, the board member files a suit for either slander or libel as the case may be. 

With that being said, Griffin explained that the success of such a lawsuit is very hard to achieve due to the heightened standard of a board member being a limited purpose public figure. In addition, sometimes the statements are those of opinion. An example would be if a resident called a board member incompetent. “That’s an opinion. Everyone has the right to an opinion. You can’t sue somebody for having an opinion,” said Griffin. 

Another example of a statement of opinion would be if a resident said to a board member, “I think you would never have made that choice if there wasn’t something in it for you.” On the other hand, if a resident says to a board member, “You’re a thief. We give maintenance fees to you every month and you’re stealing our money,” that might be actionable due to the implication of criminal action, noted Griffin.

When a board member does decide to go ahead and file a lawsuit for defamation, the damages sought can vary. In New Jersey, said Griffin, the plaintiff does not have to list the exact amount of money being sought. “A good element of damages is if you can show you had an actual loss,” Griffin said. For example, if a board member can prove that he or she lost a client due to the false accusations made, and that board member earned $10,000 per year from that client, that’s a valid element of damages which can be recovered.  In cases of slander or libel per se, the damages do not have to be so concrete.  The jury puts a value on the slur suffered without proof of out of pocket losses.  Griffin explained that the board member is considered to have been hurt for purposes of compensatory loss if the slander or libel meets the criteria for actual malice for a limited purpose public figure.

Griffin noted that these types of lawsuits often arise preceding a board election where people are campaigning. Typically, when these lawsuits are filed, the purpose is to encourage someone to stop spreading lies, not so much because the person wants a monetary recovery.  However, there are other options aside from filing a lawsuit that a person can pursue to get the spreading of false information to stop, said Griffin. 

Griffin also pointed out that if a board member does file a lawsuit against a resident, he or she is not required to step down from the board. Additionally, these types of lawsuits typically do not become an issue for the association itself because the cause of action does not usually belong to the association, but rather to the slandered or libeled board member. “Generally, the association does not bring those lawsuits and generally the association does not have to defend them,” Griffin said.