Half of American adults get at least some of their news from social media.[1] Therefore, it is no surprise that many homeowners associations (“HOAs”) create social media pages to keep their members informed on developments in the community, and it is also no surprise that homeowners often take to social media to make their thoughts known about their HOAs. While social media can be a convenient way to get a message out to a large group of people, an HOA must be more careful with its use of social media than perhaps the average individual. In fact, it is worth careful consideration whether social media is right for your HOA at all. This article is intended to provide some general guidelines your HOA should follow if it does operate a social media page.
First, it is well known that social media is not always a haven for positive commentary.
While your HOA may have the best of intentions in starting a social media page, it must be prepared for the real possibility that posters may make negative or even inappropriate comments on the HOA’s page. When someone posts a comment critical of the HOA, it may be tempting to aggressively respond to their comment, but a publicly viewable message is probably not the best way for the HOA to respond to an individual owner’s grievance. Not only could airing a dispute so publicly risk inappropriate disclosures in breach of the HOA board’s fiduciary duties, but from a practical standpoint, addressing an individual complaint so publicly foreseeably exacerbates and escalates the conflict.
It is important to note that the statements by the HOA on social media, or even by its board members as individuals, may be construed as the official position of the HOA.
Therefore, the operator(s) of the HOA social media page, as well as all board members, should be careful to not only conduct themselves professionally in accordance with their fiduciary duties, but also to avoid statements which could harm the HOA’s legal or practical position on a matter. It is axiomatic that you should not make a statement in writing that you would not feel comfortable defending in a courtroom, and the same can be said for social media comments by HOA board members or the HOA’s page itself. In fact, should the HOA find itself in litigation, comments on the social media page would be subject to the reach of discovery.
Moreover, comments from other posters on the HOA’s page can be an unanticipated source of liability for some HOAs, to include claims of defamation. Although the law is still adjusting to the application of defamation causes of action to online publications, and the precise moment at which a social media comment becomes actionable may not be clear, it is foreseeable that an HOA could be held liable for if a member posts something defamatory against another person on the HOA’s page. Moreover, while each case would be fact-specific, it is possible the HOA could be held liable for allowing harassment to take place on its page. Therefore, an HOA operating a social media page should promptly remove any defamatory or otherwise inappropriate comments.
It should also be noted that not all HOA members use social media. Therefore, your HOA should not rely solely on a social media page to notify members of important updates or any actions for which your governing documents or law require notification to members.
In light of the aforementioned considerations, it would be prudent for an HOA with a social media page to adopt a policy governing the administration of its page.
An ideal social media policy should define and limit who has access to an account; control who can speak on association platforms; establish clear terms of use of the platform; expressly prohibit negative or disparaging comments about individuals or entities; prohibit publication of any confidential or potentially embarrassing information which may violate an owner’s or employee’s privacy rights; assert the right of the page’s administration to remove comments that violate the standards and terms of use for published comments and preserve the right to deny access to individuals who fail to respect the terms of use; and establish procedures for the expeditious removal of comments deemed to be offensive, libelous, otherwise inconsistent with the usage standards. It would be advisable for the board to select specifical individuals to oversee the social media page to ensure it is administered pursuant in accordance with the policy and to ensure inappropriate comments are removed promptly. Furthermore, the policy should provide for some type of screening procedure by which the Board approves the HOA’s posts before they are posted to the page to ensure the post does not convey a message that poorly or inaccurately represents the HOA.
Again, this article is not intended to be an exhaustive list of considerations for an HOA operating a social media page, but rather some general guidelines. Your HOA may very well consider these guidelines and determine that a social media page is not the best idea for your HOA, and that is a certainly an understandable determination.
Written by Stephanie Trotter Kellahan
Our attorneys at McCabe, Trotter & Beverly, P.C. are well-equipped and prepared to assist with your HOA’s questions regarding social media. Please contact us at (803) 724-5000 for further information.
McCabe, Trotter & Beverly, P.C. blogs and other content are for educational and informational purposes only. This is not legal advice and does not create an attorney/client relationship between McCabe, Trotter & Beverly, P.C., and readers. Readers should consult an attorney to understand how this information relates to their personal situation and circumstances. You should not use McCabe, Trotter & Beverly, P.C. blogs or content as a substitute for legal advice from a licensed attorney.
[1] https://www.pewresearch.org/journalism/fact-sheet/social-media-and-news-fact-sheet/