Answer:
First thing’s first: Contact a lawyer. Defamation cases involve complex legal analyses that you can’t do on you own.
“I wouldn’t recommend someone try to decipher this themselves,” says Steve Wagner, a partner at the law firm Wagner Berkow who represents co-op and condo boards and has litigated high-profile defamation cases. “It’s a tricky area of the law.”
That said, it’s probably a good idea to go back through those online posts and take stock of what you did write. Your lawyer’s going to need to know everything.
From the universe of what you’ve posted online, your lawyer can help you figure out if in the eyes of a judge the offending posts identified by the board have been unfairly represented.
“To determine what constitutes defamation, you have to look at the context in which a statement is made,” Wagner says. “You can’t just cherry-pick.”
Part of the context here is the internet itself, and as Wagner says, “The courts recognize that there is a freeform style of writing online.”
A defense against this sort of lawsuit might be threefold. First, your lawyer could fight disclosure of the identities behind pseudonymous online posters on First Amendment grounds. In addition to protecting the right to freedom of speech, the First Amendment protects the right to anonymous speech.
A second argument, Wagner says, is that “These are opinions, not statements of fact.”
He explains, “For something to be a statement of fact, the reader has to be led to believe you know something they don’t know.”
So for example, “The board is stealing” is a statement of fact. On the other hand, “The board started out with $1 million, and did three projects that can’t have cost more than $10,000 each, and now the board says it has spent the million—the board is stealing,” is an opinion.
“It’s counter-intuitive, and it can get very murky, the question of what is a statement of fact versus an opinion,” Wagner says.
The third defense would be a common interest privilege. So for example, if your online posts were made in a semi-private forum with other residents of your building, you could argue that you were all talking about something that you have a shared interest in, and if nothing you said is demonstrably false or said out of malice, it should be protected.
The particulars of the defense, of course, would depend on the specific facts of your case.
But as a universal rule of thumb to help spare you this sort of situation in the future, Wagner says, “Don’t write anything you don’t want read aloud in court, or that you don’t want your mother to hear. Don’t even write it in an email.”
New York City real estate attorney Steven Wagner is a founding partner of Wagner | Berkow with more than 30 years of experience representing numerous co-ops, condos, and individual owners and shareholders. To submit a question for this column, click here. To ask about a legal consultation, send an email or call 646-791-2083.
