Legal Issues With HOA Websites

Published in the ECHO Journal, February 2010

Many associations are establishing Websites and Internet Bulletin Boards for use by owners and residents. This article will discuss legal issues related to whether an association could be held liable for the contents of communications posted on the Bulletin Board; to issues related to “cyber-bullying,” to the application of the Battin Bill, Civil Code 1363.03, to these issues, and to whether a board may “censor” postings and if so, whether the board could be held liable for such censorship.

Some associations establish only Websites, but others are considering interactive bulletin boards[1]. The bulletin boards can be used so that members and residents can post notices. Some bulletin boards require the association, the manager or someone else to pre-approve notices that are posted and allow the board or a manager to edit or delete notices, for example, if the content is determined to be inappropriate. Although Websites and bulletin boards may be useful and may provide a convenient forum for communication, they present potential problems that directors and managers need to consider.

First Amendment and “Internet Defamation”

In determining whether to establish an electronic bulletin board and, if so, what guidelines to establish, the board needs to consider whether the association could be held liable for the content of the Bulletin Board. Another issue is whether the Bulletin Board could be misused in a way that would be harmful to members of the community, or to the community as a whole. The courts have not treated Internet bulletin boards in the same way that they treat newspapers, radio programs or similar media. Instead, they have provided broad immunities to entities that provide access to internet bulletin boards.

In addition, conduct known as “cyber-bullying” has become a problem, and the courts have been reluctant to impose liability on the “cyber bullies.”

Speech on the internet is accorded First Amendment protection. “Through the use of chat rooms, any person with a phone line can become the town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. …. Our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.” (Reno v. American Civil Liberties Union (1997) 521 U. S. 844, 870).

In other words, this is an emerging area of law, and courts are making new rulings all the time.

 The U.S. Supreme Court has recognized that technology, through the Internet, has given a powerful voice to all citizens who wish to engage in the political debate, the argument about the human condition, and so on. “Criticism on the Internet is often so recklessly communicated that the harm to its targets may extend far beyond what is covered by rules applicable to oral rhetoric or pamphleteering.” (Krinsky v. Doe 6 (2008) 159 Cal. App. 4^th 1154, 1164)

In addition, “the targets of ‘cyber-smear’ may suffer damage to both personal and business reputations as disinformation and rumors propagate rapidly over the Internet. In addition, as the level of rational and civil discourse deteriorates, it becomes increasingly difficult to find meaningful contribution in these online conversations.” (Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace (2000) 49 Duke L. J. at p. 903)

Federal law provides broad immunity to those who distribute even defamatory statement on a Bulletin Board or Website.

“The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications. Nevertheless, by its terms Section 230 exempts Internet intermediaries from defamation liability for republication. The statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended. Section 203 [of the Communication Decency Act] has been interpreted literally. It does not permit Internet service providers or users to be sued as ‘distributors,’ nor does it expose ‘active users’ to liability. Plaintiffs are free under Section 230 to pursue the originator of a defamatory Internet publication. Any further expansion of liability must await congressional action.” [Barrett v. Rosenthal (2006) 40 Cal. 4^th 33, 62, 63]

Communication Decency Act of 1996

 Title V of the Telecommunications Act of 1996, Pub. L. No. 104-104 is known as the “Communication Decency Act of 1996.” [“CDA” or “Act”] The primary goal of the Act was to control the exposure of minors to indecent material. Parts of the Act have since been struck down as unconstitutional limitations on free speech (United States v. Playboy Entertainment Group (2000) 529 U. S. 803), but the section at issue here, Section 230, remains intact. Prior to enactment of the CDA, a person who published or distributed speech over the Internet could be held liable for defamation even if she was not the author of the defamatory text and even if she was unaware of the statements. (Stratton Oakmont, Inc. v. Prodigy Services Company, 1995 N. Y. Misc. The legislative history indicates that Section 230 was enacted as a response to the Stratton case, which was an unreported New York trial court case. (See Senate Report No. 104-230, Second Session, page 194 (1996))

In Section 230 of the Act, (47 U. S. C. § 230) Congress has granted broad immunity to entities and individuals that facilitate the speech of others on the Internet. As a matter of policy, “Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene and defamatory materials written or prepared by others.“ [Blumenthal v. Drudge (D.D.C. 1998) 992 F. Supp. 44, 49]

Courts construing Section 230 have recognized as critical in applying the statute the concern that lawsuits could threaten the “freedom of speech in the new and burgeoning Internet medium.” [Zeran v. America Online, Inc. (4^th Circuit 1997) 129 F. 3d 327, 330]. In the Zeran case, plaintiff Kenneth Zeran was bombarded with angry and derogatory telephone calls, including death threats, after an unidentified person posted a message on an America Online bulletin board. Zeran informed AOL and they removed the posting.

However, similar messages appeared. Zeran was again overwhelmed with calls and threats. He sued AOL for unreasonable delay in removing the defamatory messages, refusing to post retractions and failing to screen for similar postings. AOL successfully moved for summary judgment on the pleadings, relying on Section 230. The Fourth Circuit Court of Appeals affirmed reasoning that the plain language of Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating from a third-party user of the service. Specifically, Section 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions, such as deciding whether to publish, withdraw, postpone or alter content are barred.” (Zeran, at p. 330)

Section 203 (c) also encourages interactive computer services and users of such services to self-police the Internet for obscenity and other offensive materials, so as to aid parents in limiting their children’s access to such material. (Zeran v. America Online, Inc. (4^th Circuit 1997) 129 F. 3d 327, 331)

At common law, “primary publishers,” such as book, newspaper, or magazine publishers are liable for defamation on the same basis as authors. Booksellers, news vendors, or other “distributors,” however, may only be held liable if they knew or had reason to know of a publication’s defamatory content. (Zeran at p. 331; Prosser & Keeton, The Law of Torts (5^th ed. 1984) § 113, pp. 810-811; Restatement 2d Torts, § 581, subd (1)) The distinction is a practical one. “Publishers are ordinarily aware of the content of their copy. It is not reasonable, however, to expect distributors to be familiar with the particulars of every publication they offer. Therefore, only a distributor who is aware of defamatory content shares liability with the publisher.” (Barrett v. Rosenthal (2006) 40 Cal. 4^th 33, 45)

It is important to note that Section 230 (e) has no effect on the enforcement of other laws intended to protect individual rights, such as Sections 223 and 231 that deal with “cyber-stalking” and obscenity; Section 110 that relates to the sexual exploitation of children, such as the Children’s Online Privacy Protection Act; laws against child pornography; laws pertaining to intellectual property or copyright; any relevant State laws; or violations of the Electronic Communications Privacy Act of 1986 (or any of its amendments) which is intended to protect privacy and confidentiality issues.

HOA Bulletin Board May Be “Public Forum”

“The right to speak on political matters is the quintessential subject of our constitutional protections of the right to free speech. Public discussion about the qualifications of those who hold or wish to hold positions of public trust presents the strongest possible case for application of the safeguards of the First Amendment.” (Conroy v. Spitzer (1999) 70 Cal. App. 4^th 1446, 1451)

As the Supreme Court has recognized, owners of planned development units “comprise a little democratic sub-society.” (Nahrstedt v. Lakeside Village Condominium Association (1994) 8 Cal. 4^th 361, 374) Because of a homeowner’s association board’s broad powers and the number of individuals potentially affected by the board’s actions, the legislature has mandated that boards hold open meetings and allow the members to speak publicly at the meetings. (Civil Codes §§ 1363.05, 1363, 1350 -1376) These provisions parallel California’s open meeting laws regulating government officials, agencies and boards. Accordingly, board meetings are “public forums.” (Foothills Townhome Association v. Christiansen (1998) 65 Cal. App. 4^th 688, 695-696) Further, posted statements, such as the manner in which a homeowners association would be governed, an inherently political question of vital importance to each individual and the community as a whole would be considered “issues of public interest.” (Chantiles v. Lake Forest II Master Homeowners Association (1995) 37 Cal. App. 4^th 914, 922)

To date, no court has been faced with the task of determining specifically whether a homeowner’s association Internet bulletin board is a “public forum.” We can look to the facts in Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App. 4^th 468 to assist us developing a logical assumption. In Damon, appellant was employed by a homeowners’ association as its general manager. Homeowners became displeased with the quality of his services. Criticism was expressed at association board meetings and in the newsletter of respondent. He sued the association for defamation, but the court threw his case out of court, stating he was suing as a way of punishing the owners for voicing their opinions, as they had a right to do.

The Court of Appeals reasoned that the statements the manager complained of were made in a public forum, so they came within section (a) (3) of California Code of Civil Procedure § 425.16 which states that “(e) as used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issues” includes: “(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issues of public interest.” The statute provides a procedure for a court to dismiss at an early stage non-meritorious litigation meant to “chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (California Code of Civil Procedure § 425.16 (a))

In Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App. 4^th 468, the court held that “the board played a critical role in making and enforcing rules affecting the daily lives of Ocean Hills residents. Those rules were promulgated at board meetings, which were televised, open to all association members, and served as a place for open discussion among directors and members.” The court further determined that “the Village Voice [newsletter] was a public forum in the sense that it was a vehicle for communicating a message about public matters to a large and interested community. All interested parties had full opportunity to read the articles in the newsletter. It is in this marketplace of ideas that the Village Voice served a very public communicative purpose promoting open discussion, a purpose analogous to a public forum.” (Damon at p. 476-477) The Village Voice Newsletter was a “public forum” and the statements concerned matters of “public interest” to the members of the association within the meaning of California Code of Civil Procedure § 425.16.

What Guidelines for Bulletin Board Use are Permissible?

It is a well accepted legal principle that certain forms of conduct mixed with speech may be regulated or prohibited. As pointed out long ago by Mr. Justice Holmes of the United States Supreme Court, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic.” …. A man may be punished for encouraging the commission of a crime or for uttering “fighting words,” …..These authorities make it clear that it has never been deemed an abridgement of free speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language either spoken, written, or printed.” (Church of Christ in Hollywood v. Superior Court of Los Angeles County (2002) 99 Cal. App. 4^th 1244, 1253)

Civil Code 1363.03 (a)(1), which is a portion of the “Battin Bill,” requires that associations provide equal access to “association media” to all candidates for association office, and to all persons who want to express a point of view that is different from the board’s point of view prior to an “election.” CC 1363.03(a)(1) provides, as pertinent: “An association shall adopt rules, in accordance with the procedures described by Article 4…that do all of the following: (1) Ensure that if any candidate or member advocating a point of view is provided access to association media, newsletters, or Internet Websites during a campaign, for purposes that are reasonably related to that election, equal access shall be provided for all candidates and members advocating a point of view, including those not endorsed by the board, for purposes that are reasonably related to the election. The association shall not edit or redact any content from these communications, but may include a statement specifying that the candidate or member, and not the association, is responsible for the content.”

Thus, an association may not restrict candidates’ statements on a Bulletin Board, nor may it edit or redact the content of members’ statements that are related to an election.

The final issue is what guidelines, if any, are permissible. Section 230 (c) provides protection from liability for the “Good Samaritan” blocking and screening of offensive material. (Offensive material is not defined within the Act). In particular, section 230 (c) (A) and (B) states that no provider or user of an interactive computer service shall be held liable on account of, “any action taken voluntarily in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected; or any action taken to enable or make available to information content providers or others the technical means to restrict access to materials described in (A) above.”

A sample use policy for an association Bulletin Board or Website is printed on page xx as guidance for board members and managers.

Congress has granted broad immunity to those that moderate, revise, edit or restrict content to Internet bulletin boards and similar electronic message boards for the above-stated reasons. WebContent.gov[2] states, “Moderation or editing of content is a good approach to ensure that inappropriate comments or material is not posted; however be prepared that there may be accusations of censorship.”

Conclusions

1. Associations have broad statutory immunity from liability for defamatory content that is placed on a Bulletin Board. However it would still be wise to place a disclaimer on the Bulletin Board. The disclaimer could be worded as follows: “The content of the Bulletin Board is solely the responsibility of the authors of the postings. An association is not responsible for this content, and neither endorses nor opposes the content of any of the postings”;
2. If owners or residents use the Bulletin Board for “cyber-bullying,” their victims will have little recourse. If someone posts a defamatory statement that includes false facts, as opposed to negative opinions, that person may be held liable for defamation;
3. In California, when a Bulletin Board is used for candidates’ statements, or for any statements related to an “election,” an association may not edit or redact the contents of the statements under the Battin Bill;
4. An association may issue guidelines that ensure that the bulletin board is not used to engage in unlawful activities; to violate child protection and exploitation laws; or to post threatening or “inappropriate” material or content. The statute does not define the term “inappropriate.”

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SAMPLE

Homeowners Association Electronic Bulletin Board Acceptable Use Policy

This Acceptable Use Policy (AUP) applies to use of the Association Electronic Bulletin Board.

This is a moderated Bulletin Board intended for use solely by registered members of the HOA. We expect all participants to treat each other with respect. All comments are reviewed before posting. We will not post comments that contain vulgar language; are obscene; personal attacks of any kind; offensive terms that target specific ethnic, racial, religious, age, or gender orientation; encourages unlawful activity; threatening material of any kind; inappropriate interaction with minors; child pornography; violations of any intellectual property or copyright laws; violations of any written agreements related to confidentiality in arbitration or mediation agreements; or any activity intended to interfere with access to the bulletin board.

Prohibited Activities

Use of the bulletin board in any way that is unlawful, harmful to or interferes with the use of the bulletin board is prohibited; interferes with the use or enjoyment of others that use the bulletin board; infringes on intellectual or copyright laws; results in the publication of any threatening or offensive material; is a security risk; or a violation of privacy or confidentiality.

Failure to adhere to these rules or guidelines is a violation of this AUP.

Unlawful Activities

Bulletin board shall not be used in connection with any criminal, civil or administrative violation of any applicable local, state, provincial, federal, national or international law, treaty, court order, ordinance, regulation or administrative rule.

Intellectual Property; Copyright Laws; Privacy and Confidentiality Laws

Bulletin board shall not be used to engage in any activity that infringes, misappropriates or otherwise violates intellectual property rights; copyright laws; privacy laws or laws concerning confidentiality of the provider or any of its users.

Threatening Material or Content

Bulletin board shall not be used to post any comment or material that harasses or threatens the safety of others. In addition, the HOA reserves the right to decline to post any content that is determined to be obscene, indecent, hateful, malicious, racist, defamatory, fraudulent, libelous, treasonous, excessively violent or promoting the use of violence or otherwise harmful to others.

Inappropriate Interaction with Minors

The bulletin board will comply with all laws pertaining to the protection of minors.

Child Pornography

The bulletin board will not be used to publish, submit, receive, upload, download, or otherwise produce, transmit, distribute or store child pornography.

User Responsibilities

Users remain solely and fully responsible for the content of any material transmitted or posted on the bulletin board.

AUP Enforcement and Notice

Member’s failure to observe the guidelines as set forth in this AUP may result in the HOA taking actions anywhere from a warning to suspension or termination of the privilege to use the bulletin board. When feasible, the HOA or BuildingLink will provide members with a notice of an AUP violation or otherwise allow the member to promptly correct such violation.

The Association is not responsible for the content of any postings other than those specifically approved by the Board of Directors.

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