I'm on my building's board and someone—I'm not sure who—is posting lies about me to the building's online message board in an effort to make me resign. Is there anything I can do?
These situations often arise when a shareholder disagrees with board decisions or where there is a contentious board election.
“A shareholder who is angry with board members because of actions they are taking might claim the board, or a specific person on the board, is dishonest or engaging in self-dealing, in order to replace that person on the board,” says Bonnie Reid Berkow, a real estate attorney at Adam Leitman Bailey, P.C. who has decades of experience representing co-ops and condos in New York City.
Recently, Berkow successfully represented the board in a defamation case against a former board member and another person who failed in their board election bid. The individuals had anonymously criticized board members in blogs and newsletters, alleging they were dishonest and that there was financial mismanagement.
Prior to commencement of the action, the board conducted an investigation using a cyber forensics expert in order to trace the emails to a particular individual’s computer.
When considering filing an action for defamation, you need to determine whether the language used would be considered a false statement of fact, which is actionable, or an opinion, which is not actionable.
“The false statements were made very broadly and without any supporting facts to explain the basis of the statements,” Berkow says. If a statement purports to be a fact without disclosing information on which the fact is based, then it is a defamatory statement and not an opinion.
Sorting fact from opinion to determine defamation
A statement is an opinion—and protected by First Amendment rights—if it has some underlying information upon which the assertion is being made.
For example, if a shareholder says: “Mr. Smith is stealing from the co-op; he has building staff walk his dog every day, move his car for alternate side street parking, and his apartment has just been repainted by building staff,” that would be considered an opinion. There is a basis on which the statement is being made that is something that you could verify.
“If the claim is accompanied by a recitation of the facts on which it is based, that’s not actionable,” says Steve Wagner, Berkow’s partner at Adam Leitman Bailey, P.C.
Compare the previous statement to this: "Mr Smith is a thief.” This comment is not accompanied by any recitation of facts on which it is based so it is more likely to be viewed by the courts as a defamatory statement.
“A false statement of fact is not protected by the First Amendment,” Wagner says. The test is whether a reasonable reader would believe that the statements were conveying facts about the person.
It just got harder to sue successfully for defamation
“The standard needed to substantiate a claim for defamation in New York State has recently been amended, making it more difficult to successfully sue someone who is making false statements against you,” Berkow says.
This shift in the law represents an attempt to prevent defamation suits being filed by wealthy individuals in authority who sue members of the press or those seeking accountability to stop them from speaking out. Berkow says that it applies to any speech that is made in a public forum, which is defined very broadly as anything that is not “purely private."
“The statute was amended to try and stop people bringing frivolous claims to silence their critics—with the recognition that you have First Amendment rights giving you freedom of speech and that should not be abused,” she says.
What that means for board members being falsely accused of dishonesty or mismanagement is that when you bring an action for defamation it must have substantial basis. “The bar has been raised when it comes to the evidence you must provide to the courts,” Berkow says.
You need to state the particular words complained about, identify where the words came from, and be able to trace them back to the particular individual by—for example, identifying the email accounts and explaining how they were traced to the individual.
You also need to identify the dates on which the defamatory statements were made, where they were made and how they applied to you. In addition, you need to demonstrate the statements are false, and that the individual making the statements knew or should have known that they were false.
“Under the newly amended law, if you bring an action for defamation and cannot meet these standards, the complaint may be dismissed and you will also be liable for the defendant’s legal fees,” Berkow says.
In some cases, this could be as much as five figures. The award of legal fees to a person successfully defending a defamation case under the newly amended law is mandatory and intended to deter the filing of frivolous complaints, Berkow says.
Find out the identity of the person and involve a lawyer
That said, if it is very serious, you are feeling threatened, and it's affecting the quality of your life, you are entitled to protect yourself.
When someone posts defamatory lies about you anonymously your first step is to establish the identity of the person behind the statements. This can often be done with the help of a forensic cyber expert and also by a subpoena to the internet provider.
“Through the IP addresses, it’s possible to track down the identity of the person making the libelous statements,” Berkow says.
It’s also possible you already have a general idea of who the person is. “This can help you find the correct party,” she says.
Building a successful defamation case
“If the person persists in making false statements that are clearly defamatory, clearly false, and clearly not supported by any documents or information, then you would be fully justified in bringing an action for defamation,” Berkow says.
Your case will be stronger if the defamatory statements were made with little opportunity for them to be challenged or debated. For example, if defamatory comments were made at an annual meeting where shareholders are present and there’s an opportunity for discussion, the author would have more protection from a defamation lawsuit.
“In a public forum, there is more ability to have a debate and have people understand that—even if the comments are hyperbolic—they were not meant to be a presentation of a statement of fact,” Berkow says.
When defamatory comments are published anonymously in a blog or newsletter, however, there’s no opportunity for debate or discussion. “Those comments are more likely to be found to be defamatory,” she says.
Another factor that can strengthen your case is if you can show malice or ill will by the speaker. “Malice can be shown if the person making the statement made it with knowledge of its falsity or with reckless disregard of the truth and that the statement was made with an intent to injure the plaintiff,” Berkow says.
New York City real estate attorney Bonnie Reid Berkow is a partner at Adam Leitman Bailey P.C.. She has more than 30 years experience representing co-ops and condos as well as individual owners and shareholders. Send Bonnie an email to ask about a legal consultation. To submit a question for this column, click here.
New York City real estate attorney Steven Wagner, a partner at Adam Leitman Bailey P.C., also has more than 30 years experience representing co-ops and condos as well as individual owners and shareholders. To ask about a legal consultation send Steve an email or call (212) 584-1973.
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