Recommended Practices for Community Associations When Creating Websites and Using Social Media
Takeaway: The use of websites and social media by community associations is a great way for communities to keep their membership informed; however, there are recommended practices that community associations should follow in order to avoid, or at least minimize, their potential for liability exposure.
The Use of Social Media In the Community Associations Context: In order to keep their membership informed and to attract potential new purchasers, many community associations have created their own websites that contain information such as a listing of the governing documents and architectural guidelines, management contact information, and an events page. Occasionally, an association's webpage will even permit members to post comments. In addition to setting up such webpages, some community associations have started interactive pages for members to make association-related postings, such as setting up Facebook, Twitter, and Nextdoor accounts, or Yahoo groups. With community associations creating more and more platforms for members to post comments on, associations must take affirmative steps in order to protect themselves from potential liability exposure springing from inappropriate postings.
It is important to note that although both the Virginia Property Owners Association Act and Virginia Condominium Act require that associations “establish a reasonable, effective, and free method…for [ ] owners to communicate among themselves” and with the board of directors regarding any matter concerning the association, the law does not require that associations set-up a method that is email or web-based.
However, should a community association desire to create a social media outlet allowing owners to make such communications, it is recommended that the association follow the recommended practices discussed below.
Potential Liability Issues Community Associations Should Be Aware Of: There are three areas where community associations could face potential liability exposure. First, and probably the most likely area leading to potential liability, is defamation. Defamation is a false statement that damages another's reputation. Defamation occurs when a false statement is published to another, which can occur orally or in some form of writing. Members may not think before they post a comment on the social media outlet, which may not only open that member up personally to a claim for defamation, but may also tag the community association for such a claim. There may be some relief to a community association for defamatory comments posted on its social media outlet under the federal Communications Decency Act, which states that “no provider or user of an interactive computer shall be treated as the publisher or speaker of any information provided by another content provider.” However, if the community association can be linked to promulgating such defamatory comment—whether through an act of a board member, managing agent, or some other association act—the protections of the Act will not shield the association from liability. It is important to note that this Act does not protect against federal criminal liability or violations of copyright and trademark infringement allegations. Lastly, the strength of this particular provision of this Act has not been tested in local state courts so the exact limits of its protection in a state court arena are yet to be seen.
Second, community associations could also face liability stemming from copyright and trademark infringement. Postings that contain text, photos, graphics, or other media content without the author's permission may constitute a copyright or trademark infringement.
Last, unauthorized use of pictures of association members can expose a community association to liability. For instance, if an association takes pictures of its members at an association-held barbecue, posts the pictures of the members in attendance on its website or social media page, and the members in the photos did not provide their permission for such photos to be posted, the association can open itself up to a potential claim for liability.
Recommended Practices: In order to put a community association in the best position to dodge potential lawsuits, or to avoid or minimize liability, there are recommended practices the association should engage in, which are as follows:
- Create One-Way Webpages: Create community association websites that are one-way—in other words, websites that only permit the association, its board of directors, managing agent, or other designated individual to post content and information on the association's webpage. This type of website will not allow for third parties to make any postings. The association website should contain information that is helpful to its members and to potential purchasers of homes within the association, such as (a) governing documents, resolutions, and architectural guidelines, (b) board and annual meeting dates, (c) management contact information, (d) dates of community events such as barbecues, and (e) location of association.
- Check Insurance Policies to Determine Coverage: A community association should check its insurance policies, such as its directors and officers, and errors and omissions policies, in order to determine whether it has coverage for claims related to social media use. If an association's current coverage does not extend to claims resulting from social media, the association should contact its insurance agent to obtain additional coverage.
- Institute a Terms of Use for Association-Owned Webpage: If a community association has a webpage that it owns, a “Terms of Use” should be created and prominently posted on the association's webpage. The purposes behind a Terms of Use define what conditions a user agrees to when using the association's webpage and creates a contractual obligation on the user to comply with such terms. The Terms of Use can provide that no defamatory, abusive, or profane comments can be posted and that the association and other users have the right to reproduce comments that are posted on the webpage. Any violation of the Terms of Use can result in the user's posting being removed or for the user to lose access to the webpage if a log-in is required to gain access. In addition, the Terms of Use should include what copyrights and trademarks belong to the association, should discuss limitations of liability and should state that user comments do not represent the opinions of the association.
- Impose Social Media Guidelines for Sites That Permit Posting by Third Parties: For community association's using interactive social media websites such as Facebook, Twitter, and Nextdoor, such associations should create and enforce social media guidelines pertaining to a party's use of such interactive sites. The social media guidelines will be similar to a Terms of Use; however, since the association does not own its Facebook, Twitter, or Nextdoor pages, these Terms of Use cannot be instituted by the association. Rather, the social media guidelines will outline what content can and cannot be posted, such as the prohibition against posting copyrighted or trademarked materials, defamatory comments, or identifying a member's or resident's personal information. The social media guidelines will also provide that if information is posted that is not permitted by its guidelines, such a posting will be removed. The association's social media guidelines should be made available to all members of the association, and if possible, placed prominently on the interactive social media page.
- Continual Monitoring of Posts: A substantial disadvantage of an interactive social media page hosted by the association or one permitted on a service such as Facebook or Twitter is that the association should continually monitor the postings to ensure the users are complying with the Terms of Use and/or social media guidelines. Someone has to be tasked with this job and given the necessary access (i.e., administrative powers) to enforce the rules. Associations should also investigate complaints quickly, and promptly remove any unlawful or non-compliant postings.
- Receive Releases from Members before Posting Photos: If a community association wants to post pictures of its members attending association-related events, it is recommended that the association obtain permission from the members in the photo prior to posting such photos to its website or social media outlets. This can be done by placing on the event ticket, invite, or event welcome board that the association has the right to post such photos to its website or social media outlet.
- Seek Legal Guidance: Consult with the community association's legal counsel in order to discuss potential liability issues and recommended practices related to the creation of and/or usage of association websites and interactive social media.
If members of the board and/or managing agents of a community association have any questions regarding social media issues and recommended practices, please contact your Whiteford, Taylor & Preston community association attorney for assistance.