Legal Uncategorized

The Legalities of Social Media

What is Social Media?When we talk about “social media” we are talking about electronic communica­tion. Often it is in the form of online com­munities that share information, ideas, personal messages, and other content. It comes in many shapes and sizes, usually referred to as “platforms,” and ranges from community websites, to blogs, vlogs, mi­croblogs (e.g. Twitter), discussion forums (e.g. Yahoo Groups), social networks (e.g. Facebook, NextDoor, LinkedIn, etc.), vid­eo and photo sharing sites (e.g. Instagram, Shutterfly, etc.).

Social Media as a Valuable Tool

There are many benefits to a community as­sociation establishing an online, social media presence such as communicating with mem­bers regarding association events, meeting reminders, and keeping residents up to date on the latest community information. It will also allow community members to commu­nicate with the association and with their fellow neighbors. In addition, social media can be used to promote the community, by providing a platform for sharing photos of the community and community events, and offering spotlights on community and/or resident successes.

An online social media presence helps promote a sense of community by enticing participation by those who would not otherwise be involved, sharing information and concerns impacting the neighborhood. Social media can also be a valuable tool in more unconventional ways, such as in collec­tions and litigation. Various sites can provide a wealth of information regarding an individual if you are willing to dig in (e.g., address, birth­date, employment, asset information, etc.).

Social Media as a Dangerous Weapon

Although the advantages will generally out­weigh the disadvantages, community associ­ations should be aware when establishing its social media presence, that their otherwise valuable tool can potentially be twisted into a weapon to be used against the association.

Many community associations have seen or experienced “keyboard commandos.” These individuals wage their own personal battles, whether against a certain neighbor, manage­ment, or the board using the association’s social media platform. Often, they use the platform for airing grievances, or for even shaming or bullying other members of the community, and the content and comments may be unrelated to the association itself.

Sometimes the keyboard commandos will create fake accounts to maintain their an­onymity or may use the association’s social media platform to stalk or harass an individ­ual or group and may include false accusa­tions, defamation, slander, and libel.

Another danger to social media is that res­idents or a group of residents can create a website and/or other social media platform, using the name of the association, in order to criticize the association, its board and/or management. These sites may cause confu­sion and appear to be an “association” site. There are ways to combat against these dis­sident sites, such as registering the associ­ation’s name as a trademark, purchasing all domain names with the association’s name, sending a cease and desist letter, and suing for injunctive relief and/or damages caused by the improper site.

Legal Considerations

Just as community associations should crack down on the unautho­rized use of the association’s name and/or materials on third party websites or social network sites, so should associations be cognizant and careful in its use of outside material on its sites. Unauthorized use of third-party trademarks, service marks, or copyrighted material on a site can potentially lead to legal liability for trademark infringement, dilution or unfair competition.

Other legal issues to be concerned about include, but are not limited to, defamation privacy, and confidentiality. Statements published to a limited group of “friends” or “followers” on a social networking site can potentially result in legal action against the poster. Generally, un­der the Federal Communications Decency Act, an association would not be treated as the “publisher” for a posting by a member or user of the association’s site. However, if the poster is acting, or is perceived to be acting, under the authority of the association, the association could be held liable for the defamatory statements.

When it comes to the issue of privacy with an association’s social me­dia site, there are a number “don’ts” an association should follow: 1) Don’t include personal information about members without their permission; 2)Don’t post contact information for a board or commit­tee member if he or she does not want to be contacted by members directly; 3) Don’t post confidential information or privileged docu­ments. As a general rule, if a document can be legally withheld from inspection by members then it should NOT be on the site.

Please note, status postings on Facebook, “tweets,” and discussion forum postings on social networks are all discoverable information to the same extent as emails and text messages, and, the association could be compelled to turn this information over to an opposing party in litigation.Best

Practices Recommendations

To mitigate the disadvantages, there are a number of steps communi­ty associations can take to best navigate social media.

 1. Appoint an Administrator 

The association must commit and make specific plans and to keep the social media, and the association’s website maintained and updated by allocating appropriate time and resources. A key component is having the association appoint one or more (preferably at least two) individu­als to serve as the association’s social media administrator or moder­ator. The purpose of the administrator or moderator is to ensure that all content associated with the association is consistent with the asso­ciation’s values and professional standards. Also, the content of the as­sociation’s website and social media site must be updated and regularly monitored to be of value to the members and visitors. Members are less likely to visit the site if the information is stagnant and unchanged.

 

2. Create and Implement “Social Media Guidelines,” “Terms of Use” and “Comments Policy”

Community associations looking to estab­lish a social media presence should create a written policy, which can be as detailed or as simple as the association deems necessary, but at a minimum should address: a)who can view and/or post on the site; b) how message boards or postings will be moderated and whether the board or social media committee may remove offensive, false or potentially libel­ous posts; c) what type of content is appropriate for the website and/or social media page; and d)whether repeat offenders will be blocked. In addition, for any association website, the terms of use should reflect the restrictions in the so­cial media policy and include sections concern­ing Use of the website, copyrights, intellectual property, trademarks, online community rules and regulations, links, claims against the asso­ciation, disclaimers, and limitation of liability.

Associations with interactive sites, allowing members to comment and post, should also create a comments policy which explains the rules for posting on the site to users. At a minimum this policy should contain: a) a statement that the administrator and board has the right to remove any postings it deems inappropriate; b) a disclaimer that any comments posted or views expressed on the site do not necessarily reflect the views or opinions of the association; and c) the contact information of the Adminis­trator of the site in order to enable users to report inappropriate or offensive comments or postings.

3. Monitor for Appropriate Content

If an association’s social media site or website allows open posting/comments, the associ­ation should make sure that all postings and comments are monitored. Content should be limited by the association to matters that benefit the community, and inappropriate content should be deleted. However, the as­sociation’s social media administrator should strive to be neutral in moderating comments, and should not remove all comments that are critical of the association, the board or the ad­ministrator’s. Rather, the social media policy should govern what comments and postings should and should not be removed.

4. Establish Privacy Controls

An important form of privacy control requires individuals to be approved before joining the site. Every person should be required to read and accept the terms of use before they receive membership or approval to use the site.

5. Ensure Insurance Coverage.

Community associations that have a social media presence should regularly review its insurance policies, in order to determine whether it has coverage for claims related to social media use. If an association’s coverage does not extend to claims resulting from so­cial media, the association should contact its insurance agent to obtain additional coverage.

6. Consult with Legal Counsel

If you have any questions regarding your use of social media, it is always a good idea to check with your legal counsel to make sure that you do not run afoul of the law, or unknowingly set yourselves up for legal liability.

 

By Sara J. Ross, ESQ. & Nicole Williams, ESQ.
Sara is a principal with the firm of Chadwick, Wash­ington, Moriarty, Elmore & Bunn, P.C., and practic­es in the firm’s Fairfax, Virginia office. Her practice is devoted to community association law in Virginia. She is an active member of WMCCAI, frequently presenting at educational seminars and has been published in several national publications.

Nicole is an attorney with the law office of Rees Broome, PC, where she represents condominium and homeowner associations located in Maryland, Virginia, and D.C. She was named a Rising Star in 2013 and received the Chapter Appreciation Award in 2015. Nicole currently serves as the Co-chair of the Quorum Editorial Committee.

 

 

 

 

 

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