By:  Kyle P. Shaughnessy, Esq.

As the Internet has become the go-to source of information for most people, the first instinct of many residents of community associations who want information about their community or wish to communicate with the board of directors, their property manager, or their neighbors, is to go online. In addition to maintaining a website to allow residents to access news, submit requests, or make payments, another potential use of the website is to provide a forum for residents to post reviews of vendors, contractors, and other service providers that have done work for them so that their neighbors can benefit from their experience and make better informed decisions. However, the obvious red flag for associations is potential liability for comments that may be defamatory or otherwise expose the association to lawsuits.

The good news for associations is that federal law provides strong protections for the hosts of websites or forums where third parties create or post content.  Section 230(c) of the Communications Decency Act states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c).  Section 230 of the Communications Decency Act further provides that “[n]o cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section.” Courts have interpreted these provisions as immunizing pretty much any interactive service, including websites, blogs and forums, from tort liability for information or content that is posted by a third party.  In other words, comments or reviews posted by residents would not expose the Association to tort liability for these comments, but the residents who make the statements could still be individually liable for any false or defamatory content they post. It is important to emphasize that the immunity provided to the host of a forum or blog extends only to content provided by others. For that reason, it is recommended that the association and its officers and directors refrain from posting, editing or promoting any content posted on the website or forum.

Notwithstanding the protection provided by the Communications Decency Act, it is generally recommended that associations that host such forums on their website develop terms of use that include content guidelines and disclaimers of liability for content provided by residents.  Such terms of use would typically include a description of material that is unacceptable for the forum (i.e. materials that are obscene, threatening, etc.) and disclaimers stating that the association does not endorse and is not responsible or liable for any information posted to the forum and that users who post content are responsible for their own content and may be liable for any material that is false, misleading or defamatory.  Many sites also reserve the right to monitor and delete unacceptable content, but disclaim any obligation to do so.  Cases decided under the Communications Decency Act make it clear that a service provider that reserves such rights is not liable for failing to monitor, screen or delete allegedly defamatory content from its site.

If properly implemented, a forum on the association’s website that allows residents to review contractors and other service providers who work in the community can provide a real benefit to community association members with little liability exposure to the association. The attorneys at Winter Capriola Zenner, LLC would be happy to assist you in creating such a forum for your community.