Helping Boards Avoid Defamation Claims

Board members and community managers communicate every day—emails, meetings, notices, and conversations with homeowners. According to attorney Elliot Cappuccio, those everyday communications can carry real legal consequences if they aren’t handled carefully.

Understanding what you say, how you say it, and who hears it can help boards avoid defamation claims and other legal trouble.

Why Communication Matters

As directors and property managers, you have a duty to communicate on behalf of the association. But not all communication is treated the same under the law. Some information must be protected, some is legally privileged, and some—if handled incorrectly—can become defamatory.

Knowing the difference is key.

1. Confidential Communications: Handle With Care

Confidential communication involves sensitive information that boards and managers have a duty to protect.

For associations, this most commonly includes:

• An owner’s personal identifying information
• Violation histories
• Payment or delinquency information

This type of information should not be shared publicly, unless:

• A court order or subpoena requires it, or
• It is necessary to enforce an association right (such as filing a lawsuit to collect unpaid assessments)

When in doubt, confidentiality should be the default.

2. Privileged Communications: Keep It Inside the Triangle

Privileged communication most often refers to attorney-client privilege.

The law encourages open and honest discussions between:

• The association (the client)
• The association’s attorney
• Authorized agents, such as the property manager

Attorney-client privilege works like a triangle. As long as communication stays inside that triangle, it is protected. Once it goes outside, the privilege may be waived.

Common risk area: email.

Using personal, household, or work email accounts can lower the expectation of privacy and risk exposing privileged information. Dedicated association email accounts help protect confidentiality and privilege.

3. Understanding Defamation: Libel and Slander

Defamation occurs when an untrue statement is made that damages someone’s reputation or livelihood.

There are two main forms:

• Slander – spoken defamatory statements
• Libel – written or published defamatory statements

Both fall under the umbrella of defamation and can create serious liability for associations and individuals.

4. Defamation Per Se: When Damage Is Presumed

Defamation per se involves statements so serious that harm is assumed without further proof.

A common example is falsely accusing someone of a crime.
For instance, publicly accusing a board member or treasurer of stealing or embezzling funds—if untrue—would likely be considered defamation per se.

In these cases, reputational harm is presumed.

5. Defamation Per Quod: When Context Matters

Defamation per quod depends on the circumstances.

A statement might not seem harmful on its own, but it can become defamatory based on who the person is and how the statement affects their livelihood.

For example, publicly claiming someone was intoxicated may carry far greater consequences if that person holds a job where safety or professional trust is essential. Context matters—and boards should be cautious about making statements that could be misinterpreted or damaging.

Truth Is a Defense—but Caution Is Still Required

Truth can be a defense to defamation. However, proving truth can be costly, time-consuming, and stressful. Even accurate statements can create problems if shared unnecessarily or without proper legal guidance.

When in Doubt, Talk to Counsel

If a board or manager is considering releasing information that could be:

• Confidential
• Privileged
• Potentially defamatory

The safest step is to consult the association’s attorney first. Working with legal counsel helps create a plan to determine:

• Whether the information should be released at all
• How to release it in a way that minimizes legal risk

The Takeaway for Boards

Clear communication is essential—but careful communication is critical. By understanding confidential information, preserving privilege, and avoiding untrue or damaging statements, boards can protect both the association and themselves from defamation claims.

When uncertainty arises, legal guidance isn’t a last resort—it’s a smart first step.