By Michelle Tomko
Clearly, the founding fathers, and mothers, of association boards everywhere did not anticipate needing to address what members do on the internet in their bylaws. But that is exactly where the future may be heading. Just because one resident on the board may still have an old clamshell phone, it doesn’t mean another member doesn’t have a few thousand followers on any variety of social media platforms.
The ease with which board members and other residents can share information, express opinions, and post photos makes electronic communication and social media very enticing even to a Luddite. However, from a liability standpoint, associations may find themselves in sticky situations if personal data or misinformation gets posted in a reckless or malicious way. They may even have a breach in security altogether if they are not careful.
So what are associations supposed to do? How do you sift through the legalities of controlling something that is not even on property? To answer that question from a legal perspective we spoke with attorney Tana Bucca, a Shareholder and member of Stark & Stark’s Community Associations Group in Cedar Knolls, New Jersey.
We asked Bucca if it is advisable for associations to have their own social media pages or accounts? “Residents utilize technology to obtain information related to their community events and important notices,” said Bucca. “While technology is a very useful tool, there are also some drawbacks. You need to be mindful of the issues and be ready to deal with them before you start to use social media.”
What are some of those issues from a legal perspective? “Number one, you need to make sure that you have a secure website with a password. So then no one can hack your account and obtain confidential information related to the association,” she warned. Many websites have a “Members Only” area where sensitive information like contact information is stored. Even though the site is public, the general web surfer cannot access this area of the site.
But in regard to social media platforms, Bucca had a specific recommendation. “I think all associations need to have a policy concerning use of social media websites,” she said.
But does an association really have the reach to regulate what an individual posts on their own account? “Depending on the language of the association’s governing documents, an association should be able to adopt a policy concerning board member conduct as it applies to social media,” said Bucca.
Like everything else, Bucca said that associations have to learn to grow and move with the times. “Twenty years ago we might not have had a policy concerning ‘no cell phone video at the meeting.’ Now everyone’s phone has a video camera and we need to have those rules. We need to amend constantly. It’s constantly changing and evolving,” she said.
This territory is not all that new, at least in the business world. So it is not out of line for associations to act in the same way. “An employer would have a policy,” said Bucca. “For example, you can have a social media page. But the employer’s policy may be ‘don’t post anything on your own personal social media page about the company’.” Why would a company go to the expense and bother to regulate the personal social media activity of their employees? “Generally speaking, corporations don’t like to be tied to an individual’s own personal social media page.” Why is that? “Because people might post things like political views that you can’t restrict. But you also want to stay above the fray as a corporation,” she said.
If an association does decide to write a document concerning social media, Bucca suggested that associations consult with counsel to have it done correctly. She went on to list three main considerations for this policy. “One, if individuals can use their own personal pages to advertise, publicize or spread the word about the association’s business. Two, whether or not the association should have its own social media page. And three, who should be the authorized users on the association’s page?”
Authorized users are people given special administrative access to the association’s social media site. They are responsible for the content that is displayed on the page.
Bucca then shared a common problem with the day to day maintenance that having an internet presence creates. “Associations want to have their own social media page. They want to have their own website. But no one wants to take on the responsibility of updating it. If someone on the board is very computer savvy, very good at social media and takes on the responsibility, and then resigns, no one takes it over. How can you guard against that? You need to have a policy in place that’s going to say who is going to do that,” said Bucca.
Another great piece of advice from Bucca — something she always recommends is to have more than one administrator. “You can’t just have one person as the administrator,” she said. “Imagine what would happen if only one person has all the passwords and then he or she severs the relationship with the association. It’s a corporation. These are things you need to think of.”
What methods of communication present the least liabilities for associations? “Putting information out onto social media is probably not necessary if the association has its own website. There might be information the association wants to disseminate that’s for members’ eyes only. These could be notices of meetings, notice of the events, copies of bylaws, copies of regulations and directories. Something like that would be on the secure website where there’s a ‘Members Only’ login.”
The advantage to social media over the website, according to Bucca, seems to be speed of dissemination in case of emergency. “By the same token you might want to have access to certain information like emergency information or snow removal. Social media is a good tool to get that out quickly. Things that shouldn’t be posted on social media are items of information that are not to be disseminated to the general public. Things like that, send via mail, email or post on the secure website,” she said. “Also keep in mind that providing notices via social media (like a notice of election) will likely not satisfy the requirements set forth in your governing documents. While it may be a quick way to spread the word, you need to be mindful of proper notice requirements.”
How can associations protect themselves from “rouge” social media pages and web pages set up by residents? “They can set their own social media page, and give all residents notice of the site.” According to Bucca, associations have the authority to write policy on these matters as they develop. “Your association’s governing documents give the board the authority to promulgate rules and regulations with respect to the association.”
Governing documents may require some amending to catch up with the times based on the year they are written. This is due to the obvious fact that the technology just wasn’t there. “This is emerging. This is new. Most governing documents don’t note that members can receive notice by email. Because there was no email when some documents were written,” Bucca said as an example. “Likewise, you may also need to update and amend your rules. Policies are constantly changing.”
Bucca explained that these regulations are like rules composed by the board members concerning behavior while in the common areas. “With respect to the association policy, my recommendation would be to include policies regarding board member conduct on social media. A lot of associations have policies and procedures concerning members’ conduct on the association property. For example, you can’t smoke at the pool. You can’t shout at the meeting. These are part of the association’s rules,” she said.
If an association chooses not to have its own social media page, but then residents choose to create one anyway, is there anything an association can even do to stop this? “If they violate the association’s rules while on social media, they can,” she said.
She goes on to give some practical advice. “There’s a couple things you need to be mindful of. You don’t want to interject yourself into something where there’s no need for you to interject yourself, thereby creating vast rules and policies. Bucca pointed out that there is no use for a policy if it has no teeth.
“Using social media is a great tool. But you need to be mindful of the pitfalls and put in place procedures to avoid issues,” she said.