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Can Your Association Be Negatively Impacted by E-Mail and Social Media?

The short answer to the question of whether your e-mails and/or postings on social media can impact your association negatively is YES.

Whenever people ask if there is “potential liability” when it comes to communicating online,
the prudent answer is that there is always the potential to be sued because most folks intent on
suing can find a lawyer willing to file a lawsuit. Winning that suit is another matter entirely, but
most of us don’t want to expend time and money to deal with those kinds of issues unless they
are absolutely necessary. In addition to social media’s potential impact on the association as a
defendant, it can also impact an association in its role as a plaintiff.

Let’s take the scenario of your association suing its insurance company for breach of the
insurance policy. It is fairly standard policy these days for the insurance company or its attorney to
conduct an investigation of the claimants as a part of its evaluation of the value of the claim being
made. Anything posted on websites that can be viewed by the public such as Facebook, MySpace,
YouTube, Foursquare, LinkedIn, Twitter, etc., is fair game for an investigator to review. What are
investigators looking for? Usually anything to prove you are not a solid, upstanding citizen. A
“Social Intelligence” report prepared for these investigators will look for racist remarks, pictures or
comments concerning drug and alcohol use, displays of weapons or other illegal activity.
Think no one could be so silly as to make those comments or post those kinds of pictures? Think
again and then scroll through your newsfeed!

If you haven’t checked your privacy settings on these accounts in a while, it’s time to do so, especially if there’s a claim pending. Make sure you know the people you accept into your circle or do some due diligence on them if you are networking. In addition to individual directors and managers having all these social media accounts, more and more associations are setting up social media pages for their communities. These sites can be a wonderful way to create additional communication channels to foster greater community unity, but some thought needs to be given to what is viewable and by whom. Even with proper disclaimers, a board must ask itself what it is hoping to achieve with a Facebook or Google+ page for the association, chat rooms or other social media sites. For communities with large rental pools, the appeal to do business is obviously there, but for the vast majority of associations, a well-managed association website is probably the best way to disseminate information, manage content and foster community awareness. A good rule of thumb is as follows – before you say/post/transmit anything in a digital (i.e., permanent) form or anything that can be converted into a digital form, please consider the consequences. The bottom line is that if there is information you would not want heard in open court on your social media sites, take them down while your case is pending or better yet, don’t put them up in the first place!

In addition to these rules about social media usage, every community association board these days should have an official e-mail policy, although I suspect that most do not. That policy should include, among other things, agreement as to what is and is not appropriate in e-mails amongst directors, what is and is not appropriate in e-mails between directors and professional management and what is and is not appropriate in e-mails between directors and association members.

The policy should also include suggestions as to the tone and wording of e-mails discussing association business. Never write an e-mail that you would be uncomfortable seeing blown up and sitting on an easel in front of a judge, jury or arbitrator. It is also important to remember that not every e-mail needs to be answered (you didn’t sign up for harassment when you agreed to serve on the board or manage the community), and not everyone
needs to be copied on every e-mail chain. Hitting Reply All has gotten more than one person in hot water, as has the use of the Auto Complete function in Outlook, which fills in an e-mail address after a few keys have been hit; the computer might not fill in the person to whom you were intending to communicate. Frankly, if a topic requires more than a handful of e-mails back and forth, that is a pretty good indication that a personal rather than an online discussion is warranted. Large corporations struggle with creating and routinely enforcing sound e-mail policies, so it is not surprising if residential community associations do likewise. E-mail policy is something most managers and association attorneys discuss with their association clients on a regular basis, since its use in operating these communities now is so pervasive.

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