I'm on my building's board and someone—I'm not sure who—is writing lies about me on flyers and online to try to make me resign. Is there anything I can do?
Real estate attorney Steve Wagner of the firm Wagner Berkow represents co-op and condo boards, serves on the board of his Manhattan co-op building, and has developed a niche expertise in defamation law. Wagner says he has seen a surge of inquiries about possible defamation lawsuits in the year since Donald Trump became president, a trend Wagner attributes to a generalized fraying of civility—he finds it among people across the political spectrum, and says it's not at all confined to political disagreements.
"It's a new normal. The level of discourse has gone off the rails, in part because of the internet and the ability to do things anonymously, but that's been going on for a while." Wagner says. "It seems in the last year, the language and level of anger have ramped up to the point where people are far more likely to say or write things that would qualify as defamation. And people seem to be far more willing to bring suits concerning statements made on the internet, in texts, or just by people spreading rumors. It's not just people attacking the board. In some instances it's one board member being attacked by other board members."
For some basic terminology, libel is written, slander is spoken, and both are forms of defamation.
There are very specific rules for what qualifies as defamation, and we'll leave the particulars to a legal consultation, but basically to defame someone you have write or say something factual that is false damages another person's reputation. Opinions are protected speech and truth is always a defense against a defamation claim. The issues in an actual defamation lawsuit are rarely simple, as Wagner explains.
"One of the big issues in defamation cases is whether the statement made is an opinion or a fact. Opinions are not actionable and are protected by the First Amendment. A false statement of fact is not protected by the First Amendment’s freedom of speech," Wagner says. "The difference between a statement of fact and an opinion is whether the reader or listener thinks that the person writing or speaking knows something that that person doesn't know."
For example, if someone publishes a blog on the internet saying only that “Board member X is stealing money from the coop,” that would be viewed in the law a statement of fact because one would think that the publisher knew something the reader did not know. On the other hand, if the same person published a litany of complaints about board member X, such as that he had staff fix up his apartment, walk his dog every day and park his car for alternate side street parking, and then said the same words, “Board member X is stealing money from the coop,” the statement about stealing money would be an opinion. It is something that you could agree or disagree with.
"In the first example, you've given no basis for the statement," Wagner says." In the second example, you gave all the reasons why the publisher made the statement. Readers can agree or disagree, but you're giving the basis for the claim."
Wagner brought a landmark case in 2009 on behalf of a model named Liskula Cohen, forcing Google to divulge information leading to the name of an anonymous blogger who had called Cohen names. In court, attorneys for the anonymous blogger defended by saying the mean epithets she used were opinions or perhaps jokes, and, as such, protected. The court disagreed. Cohen ultimately settled the case.
Still, her experience showed that it's possible, and that Wagner knows how, to force web vendors to divulge the identities of anonymous writers who defame others. As for the legal considerations, "You have to make sure you have a claim," Wagner says. "Consult with someone who has experience and specializes in the field and who will be able to tell you with some degree of certainty that the statement made is in fact defamation. It's not always apparent to a layperson, and is very often counter-intuitive what's a statement of opinion versus a statement of fact."
In considering a lawsuit, understand also that "It's very unlikely that you will be reimbursed for legal fees" for a defamation suit, Wagner says, "so you should be committed beforehand or understand what the costs involved will be."
You should also define your goals before proceeding with a suit. If your goal is to score a financial windfall, you may be out of luck.
"I have found that often the people who are creating these blogs are not well-heeled or are not people you can expect to make a big recovery from," Wagner says. "I do not recommend that my clients bring lawsuits where they can't make a lot of money, particularly if there are other options."
Then again, many people who have been defamed simply want an apology and to have the offending material taken down and/or retracted. This can often be accomplished with a stern legal letter, understanding that it may take some litigation with experts and internet companies to find out to whom that letter should be directed.
One should also consider the Streisand effect, named for Barbara Streisand's unsuccessful lawsuit to have a photo of her house in Malibu removed from a collection of aerial images documenting coastal erosion. Prior to Streisand's suit, an infinitesimal number of people had seen the photo, but her objection to its publication shined a massive spotlight on it.
In co-op and condo buildings, anonymous flyer campaigns, whispered innuendo, and disparaging blog posts can wreak havoc on board operations, and damage board members' personal and professional reputations. The bad blood and intrigue can become public beyond the building, and that can hurt buyer interest.
"When this kind of thing is buzzing around a building, it's possible that a broker would know. Sometimes if the litigants are high profile, it's possible that a suit could make the papers," Wagner says. "People read the board meeting minutes when they're thinking of buying into a building. A broker may steer clients away when there is a lot of strife in the building. People want to live in peace and not be inundated with flyers and emails and postings, particularly when they are defamatory."
New York City real estate attorney Steven Wagner is a founding partner of Wagner, Berkow, & Brandt, with more than 30 years of experience representing co-ops, condos, as well as individual owners and shareholders. To submit a question for this column, click here. To arrange a free 15-minute telephone consultation, send Steve an email or call 646-780-7272.
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