A key factor in any successful community association is effective communication. Perhaps the most important line of communication is between the association board and the residents, including both owners and tenants. This communication usually takes the form of a newsletter distributed on a regular basis to the owners and tenants in the association. Typically, the board of directors assumes the responsibility for publication of a newsletter, often with the assistance of the owners and the management company. In some instances, the newsletter is published by a civic association or similar entity and not by the board. Newsletters are an effective method of summarizing activities of the board, giving notice of proposed rules and hearings, providing a forum for comments by the owners and tenants, providing information concerning various activities in the local area, and fostering a sense of community.

However, the publication of a newsletter by the board of directors can raise a number of legal issues, including potential for libel on the part of the board and board members. Although there is a strong public policy in allowing people to speak or write freely without fear of civil liability, there is also a contrary policy which requires the protection of the reputation of individuals from impairment by false and defamatory attacks. Libel is generally defined as a written communication which tends to injure one's reputation, that is, "to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him."

(1) The defendant may be held strictly responsible for his conduct without proof that he intended to injure the plaintiff.

(2) The general rule now is that if the libelous statement falls into one of four special categories

(3) no proof of specific injury or harm is required to obtain a monetary recovery.

(4) If not, there can be no recovery unless specific injury or harm is proven. In addition, the plaintiff must establish that the defendant is responsible for the publication to a third person of an actionable statement and that the recipient of the statement understood its defamatory meaning. However, there are two defenses to an action for libel - privilege and truth.

(5) While there is no absolute privilege

(6) which would be available to the association board, a qualified or conditional privilege is generally available where the publisher and the recipient have a common interest and die communication is reasonably calculated to protect or further it. However, the privilege is lost if the defamation goes beyond the group interest, or if the publication is made to persons who have no reason to receive it, or if it is made with actual malice.

(7) This privilege is consistent with a public policy to promote unrestricted communication on matters in which the parties, in this instance the board of directors and the owners and tenants, have a common interest in the affairs of the association.

(8) While an argument could be made that tenants should not receive all the information normally contained in a newsletter, it may well be advisable to include the tenants in the affairs of the association in order to promote a well-maintained community. Therefore, although a qualified privilege does exist, the board of directors, which has ultimate responsibility for any newsletter it publishes, should be aware of the limits of this privilege. Accordingly, items in a newsletter which tend to impugn the reputation of a specific contractor with whom the association does business or of an employee of the association may, in certain circumstances, be construed to be beyond the group interest or made with malice. The newsletter may be used to promote compliance with the bylaws and rules; however, specific naming of violators in the newsletter should be avoided since the publication of this information does not necessarily further the common interest in general knowledge of the affairs of the association and may, therefore, exceed the scope of the qualified privilege. The same principle would be applicable to unit owners who are delinquent in paying assessments or fees.

(9) Clearly, the association has an interest in being informed of delinquencies and rules violations generally. However, on general references in the newsletter to the behavior of residents, is all that is necessary.

Resolution of individual disputes is more appropriately handled by letters from officers of the association, management, or counsel to the rules violator or delinquent owner. An owner who has a dispute with another unit owner or tenant should take such disputes to an appropriate forum rather than attempt to utilize the newsletter for this purpose. Finally, the board of directors should, of course, periodically review its insurance coverage. In this connection, the board should determine whether its insurance coverage protects the board from defamation actions arising from the publication of a newsletter as well as from other matters and, if not, should consider the inclusion of such coverage in the policy, usually at an additional premium. The board needs insurance to protect itself from the legal costs of defending a libel suit, no matter how frivolous the suit may be. By restricting the newsletter to coverage of the general concerns of the association, in good faith and without malice, and by distributing the newsletter to those persons who have reason to receive it - such as unit owners, tenants, management and counsel - consistent with the goal of keePing such persons well-informed of the affairs of the association, the board of directors will minimize the risk of liability for libel actions in publishing a newsletter.

Although the case law in this area as it relates to homeowner associations is unsettled, it is likely that these legal issues will receive more attention in the future as the number of homeowner associations continues to grow.

(1) Prosser, Law of Torts at 739 (4th ed. 1971). Slander generally involves oral communication which tends to injure one's reputation. Together, libel and slander are referred to as defamation. This article is based on general principles of law with respect to defamation. For particular issues of concern, however, an association through its counsel should consult applicable state law including both judicial precedent and statutory authority.

(2) Gariepy v. Pearson, 207 F.2d 15 (D.C. Cir. 1953), cert. den. 346 U.S. 909 (1953). The plaintiff must, however, show that the defendant intended to publish the communication to a third person. Prosser, Law of Torts at 771. See generally, 53 C.J.S. Libel and Slander at [sections] 75.

(3) Crime; loathsome disease; business, trade, profession or office (for example, an allegation that a merchant is insolvent or that a doctor charges exorbitant fees); or unchastity. In such cases, injury is presumed and may be compensated for without proof that harm actually occurred.

(4) Such damages include out-of-pocket loss (special damages) and impairment of reputation in the community, personal humiliation, and mental anguish and suffering (general damages. Gertz v. Welch, 418 U.S. 323 at 350 (1974).

(5)The concept of privilege has evolved to relieve certain defendants from liability for defamation where some interest of social importance must be protected. Prosser, Law of Torts at 776. This article assumes that no Persons subject to potential defamation could be deemed "public persons." There is a different standard of liability in the case of "public persons."

(6) For example, certain participants in judicial, legislative and executive proceedings are protected by an absolute privilege. Tiedemann v. Superior Court, 83 Cal. App. 3d 918, 148 Cal. Rptr. 242 (1978).

(7) Usually defined as knowledge that the statement was false or in reckless disregard of whether it was false or not. Gertz v. Welch, 418 U.S. 323, 334 (1974). Mere proof of failure to investigate, without more, cannot establish reckless disregard of the truth. Rather, the publisher must act with a high degree of awareness of probable falsity. Id at 332. (8) Spencer v. Community Hospital of Evanston, 408 N.E. 2d 981 (Ill. App. 1980) Brown v. First National Bank, 193 N.W.2d 547, 52 A.L.R. 3d 728 (Sup. Ct. Ia. 1972). See generally, Am. Jur. 2d Libel and Slander at [sections] 195. (9) In a case dealing with the publication of board minutes rather than a newsletter, an Ohio court recently upheld the publication of minutes of a condominium association disclosing the action taken to file foreclosure proceedings against a delinquent unit owner even though the minutes were published to an association other than that on which the defaulting owner lived. The claim was based on an invasion of privacy, not libel. The court found that a qualified privilege did exist and, although this privilege may have been exceeded, the publication was accurate and not highly offensive. Mushket v. Pickawillany Condominium Unit Owner's Association, No. 80AP-765 (Franklin City, Ohio, Court of Appeals), Community Association Law 1279.5: Nov/Dec CG, galley 14 Reporter, June 1981, at p. 1. It should be pointed out that a different result may occur where such information is published in a newsletter. Board minutes must reflect actions taken by the board; however, it may be argued that a newsletter need not contain all details of actions taken by the board in order to properly serve the interests of the association.