Social Media Is Great So Long as Boards Watch Out for These Common Dangers

Copyright infringement. Cooperatives and condominiums can be sued for copyright infringement for content posted on your website (which is not technically a social-media site, but worth warning about nonetheless). The Copyright Act provides for treble damages and attorney fees for copyright infringement. In severe cases criminal penalties may be imposed. Boards relying on the "fair use" doctrine for protection should ensure the content meets the fair-use requirements, which are more limited than popularly believed.

However, as hosts of user-generated content — such as homeowners' posts on your Facebook page — boards can take advantage of provisions of the Digital Millennium Copyright Act for protection from copyright infringement claims based on such posted  material. Adhering to the Act, boards should establish notice-and-takedown procedures and promptly remove content when notified of infringement by the copyright owner.

Employment claims. The use of social media in pre-employment screening generally is permissible, so long as you do not bypass the privacy settings of the applicant's profile or base your employment decision on legally protected characteristics. 

Unauthorized disclosure of confidential information. The potential for unauthorized disclosure of a board's confidential information has increased significantly with the instantaneous transmission capabilities of social media. Think twice before clicking “reply all”.

Harassment and disgruntled employees. Postings by building staff who criticize the board, management or coworkers could be grounds for disciplinary action or termination. The board is responsible for the actions of its staff. However, under state and federal labor laws designed to protect unions, employees have a right to communicate about working conditions.

Ownership. Ownership of social-media profiles and content should be clearly stated in a written agreement when a staff member is tasked with maintaining the co-op / condo's social media. 

Third-party content. [Section 230 of the Telecommunications Act of 1996] shields associations from liability for content posted by others unless the organization induces or uses the problematic content in some way. For additional protection, boards should monitor third-party postings by having a reporting system in place for complaints, responding quickly to complaints and promptly removing unlawful postings.

Insurance. Examine your current insurance policies (such as directors and officers; media; and errors and omissions policies) to ensure coverage is current and extends to claims resulting from social-media use. Obtain a separate social-media coverage policy if necessary.

Online solicitations. Charitable organizations conducting online fundraising should know that state charitable solicitation laws apply to both traditional and Internet-based fundraising. Forty states (including New York) and the District of Columbia require charities to register with a state agency before soliciting contributions from residents of that state. Remember: Online solicitations have the potential to reach donors in any state. Charities may have an obligation to register and report online fundraising activities in multiple jurisdictions.

Endorsements and testimonials. The Federal Trade Commission's Guides Concerning the Use of Endorsements and Testimonials in Advertising require disclosure of any connection between the endorser (an association's member or employee) and the advertiser (the association). The guides prescribe the information that must be disclosed.

Eileen Morgan Johnson is a partner at the law firm Whiteford Taylor & Preston. Past Chair of the Legal Section Council of the American Society of Association Executives, she is a frequent lecturer on homeowner-association topics. This is adapted from her post at Lexlogy.com.

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