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Subject: "Community Interest Privilege" as Protection Against a Charge of Defamation
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AugustinD


Posts:603


11/03/2017 5:37 PM  
At HOAs, it seems like someone is always claiming defamation. I am wondering how widely nationally the legal concept of "common interest privilege" applies. From https://www.echo-ca.org/article/hoas-and-defamation-what-can-you-say :
"Additional protection for speech that might otherwise be classified as defamatory can be found in the anti-SLAPP (anti-strategic lawsuit against public participation) statute, which protects people or organizations from actions that interfere with the exercise of the right to free speech. In the recent case of Damon v. Ocean Hills Journalism Club, the California Court of Appeal applied the anti-SLAPP statute to protect board members’ and homeowners’ statements criticizing the performance of the association’s manager at board meetings and in a newsletter published by a member of the association. In finding that the communications were protected, the court recognized that the association was a quasi-governmental entity. The court stated that the newsletter and board meetings, which were open to the association community, constituted a public forum, even though the newsletter expressed only one point of view. The court found that the communications dealt with a matter of public interest because they related to the manner in which a large (3000-member) residential community would be governed. The court also found that the statements at issue were not false statements but were the personal opinions of the speakers as to the manager’s performance. As such, the statements were protected speech and the manager’s defamation action was dismissed."

It is California law. Does anyone know if "community interest privilege" is so well covered in the case law that the concept would apply in any state? After googling and reading a number of articles, this is my sense.
GenoS
(Florida)

Posts:1631


11/03/2017 10:53 PM  
Florida has no "Community Interest Privilege" protection as far as I know, but the Florida HOA law (FS 720) has a lengthy section on "SLAPP Suits". I assume the condo statute has something similar.

"Therefore, the Legislature finds and declares that prohibiting such lawsuits by governmental entities, business entities, and individuals against parcel owners who address matters concerning their homeowners’ association will preserve this fundamental state policy, preserve the constitutional rights of parcel owners, and assure the continuation of representative government in this state."

The statute is wordy and I think "addressing matters concerning their HOA" might be confined to speaking or presenting to governemt agencies their opinions. The statute defines "governmental entity" and the definition does not include HOA boards, so an owner ranting about a PM at a board meeting that incurs the wrath of the PM to the point of suing the owner for defamation might not fall under the anti-SLAPP statute.
JanetB2
(Colorado)

Posts:3642


11/04/2017 8:11 PM  
I would contend you are incorrect and that "Defamation of Character" is only thrown around in very few HOA's. Majority of HOA's will stick to facts and their governing documents. The MINORITY are those who will have BOD and other members throwing around trash against each other ... which could lead to those type complaints.

The best avenue is to replace any Board Members who will trash any other homeowner in their HOA. Of course I was raised the old fashioned way that if you did not have anything nice to say about someone in public (around your fellow neighbors) ... keep your mouth shut (except for valid complaints to your Board regarding CCR violations).

AugustinD


Posts:603


11/05/2017 8:14 AM  
Posted By GenoS on 11/03/2017 10:53 PM
Florida has no "Community Interest Privilege" protection as far as I know, but the Florida HOA law (FS 720) has a lengthy section on "SLAPP Suits". I assume the condo statute has something similar.

"Therefore, the Legislature finds and declares that prohibiting such lawsuits by governmental entities, business entities, and individuals against parcel owners who address matters concerning their homeowners’ association will preserve this fundamental state policy, preserve the constitutional rights of parcel owners, and assure the continuation of representative government in this state."

The statute is wordy and I think "addressing matters concerning their HOA" might be confined to speaking or presenting to governemt agencies their opinions. The statute defines "governmental entity" and the definition does not include HOA boards, so an owner ranting about a PM at a board meeting that incurs the wrath of the PM to the point of suing the owner for defamation might not fall under the anti-SLAPP statute.


Geno, thank you for sharing what you know of Florida law on this matter. I think I get what you are saying, regarding the likelihood of the SLAPP statute protecting a HOA Member, who criticizes a HOA employee at a meeting, from an actionable claim of defamation.

Here's the interesting California "community interest privilege" statute that seems to have obtained a lot of traction in California HOAs:

CIVIL CODE - CIV
47.
A privileged publication or broadcast is one made:
(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.

Janet, the problem I am seeing is when someone at the HOA thinks constructive criticism and considered opinion is defamatory.
JanetB2
(Colorado)

Posts:3642


11/06/2017 8:36 AM  
If someone believes any constructive criticism or considered opinion is defamatory then they potentially need to suck it up. The article you posted is very good at explaining the issue with sound advice. The BOD just needs to make sure as the article stated and as we always state to some who on here discuss fining for certain issues ... that they have proof of the violations.

An example would be a while back when a BOD had fined someone claiming their dog was pooping in another neighbors yard when neither the neighbor or the BOD had proof ... then that owner hired an attorney. The one member accusing was allowed to have their own "perceived" personal opinion regarding the issue; however, the BOD must have proof beyond "reasonable doubt" to take the action they took against the other neighbor. Without any proof this type issue potentially can become defaming and falsely accusing another because of action taken without proof. This is why I always recommend a BOD not getting in the middle of any he said / she said issues.
AugustinD


Posts:603


11/08/2017 10:02 AM  
For hoatalk.com's archives, in all states, it appears that "common interest privilege" exists as a category of "qualified privilege" or "conditional privilege.' The Restatement (Second) of Torts explains this as follows:

========
An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that

(a) there is information that affects a sufficiently important interest of the publisher, and

(b) the recipient's knowledge of the defamatory matter will be of service in the lawful protection of the interest.
...

An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that

(a) there is information that affects a sufficiently important public interest, and

(b) the public interest requires the communication of the defamatory matter to a public officer or a private citizen who is authorized or privileged to take action if the defamatory matter is true.


-- From the Restatement (Second) of Torts, Sections 594 and 598 (1977). Though appearing in modern Tort reference books as well, e.g. _Hornbook on Torts_, Dobbs, Hayden and Bublick, 1916.
========

"Publication" means one person talks or writes about a second person in a communication to a third person (or a group of people).

A plaintiff in a defamation lawsuit may overcome a defense of qualified privilege only by showing "actual malice." "Actual malice" appears to translate to the defendant having acted in bad faith in communicating a falsehood. That is, the defendant did not believe the falsehood he published about the plaintiff and furthermore, the main goal of the defendant's publication was trying to injure the plaintiff (as opposed to serving a "sufficiently important interest" of the defendant or an important public interest).

"Public interest" appears to be defined in part as a matter affecting a 'substantial number' of people.
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