POA Troubles-4 questions Thanks!

[HOA Resident]

Texas Law

My neighbor friend is Plaintiff in a lawsuit against the POA where he resides and I also own a property in the same subdivision in Texas. I am going to be a witness at an upcoming court appearance regarding Covenants & Restrictions and changes in dues. Many of the owners are very unhappy with the POA Board’s manner in running the Association and possible illegal dealings including misappropriation of funds, illegal voting and more. After many certified letter requests by many owners to review the Association Books as provided by law, the POA Board has ignored these requests and will not allow them to be viewed or respond.

Recently there was an anonymous website that was created by an unhappy anonymous owner with private registration (which means you can’t see who owns the website). This website allows owners to post their comments and complaints about the POA. This has been a great tool for us owners to communicate about the realities of what’s going on within the subdivision, as opposed to what the POA Board tries to lead people to believe in their newsletters. The POA Board is very upset that the “real” info is getting out and is trying to locate the owner of the website.

This disclaimer is at the lower part of the website:

This website is online to offer information including facts, opinions, observations and ideas from concerned Property Owners at XXXXX Subdivision. This information is provided for informational purposes to help educate Owners, so they can make informed decisions regarding their investment and properties in XXXXX Subdivision. This information is believed to be accurate and true, although XXXXX Owners Forum cannot be held liable for any discrepancies.

To share your concerns, comments and pictures with other Owners, please click here: (link to email)

I do not want to let the “cat out of the bag” by saying who own or operates the website to the POA’s attorney or the judge hearing the case while I’m on the stand.

Here are my questions:

1. If the website has nothing to do with the existing lawsuit and/or my court appearance as a witness, can the judge make me tell who owns or operates the website? Can I plead the 5th amendment? Or?

2. While I am under oath, can their attorney ask me anything they desire even if it’s not relevant to the case, including who owns the website?

3. Can people anonymously list their opinions, concerns and complaints on the website without it being considered slander, libel or defamation, if the information is true or stated as their opinion?

4. Can the person who owns that website be held liable for other people’s comments?

Thank you very much!

 

[quincy]

To address the website disclaimer first, it is important to know that disclaimers cannot prevent a lawsuit. They only serve to mitigate damages in the event of a lawsuit.

The answer to your question number FOUR about a website's liability for the content on the site would be "it depends."

Websites are provided an immunity from liability under 47 USC §230 (the Communications Decency Act of 1996). There is an immunity to any cause of action (defamation, negligence, unfair competition, cyberstalking, contract claims, et al) for information originating with third party users.

Two of the many suits that illustrate this immunity are Universal Communications System v Lycos, Inc, 478 F3d 413 (1st Cir 2007), where a message board was found not liable for users' messages posted on the board, and Global Royalties Ltd v Xcentric Ventures, LLC, 544 F Supp 2d 929 (D Ariz 2008), where there was immunity in refusing to remove defamatory content created by others.

The immunity provided under §230 is not, however, an absolute immunity. If a website owner contributes or creates content, the website owner can face liability over what is posted on the site (see Nemet Chevrolet Ltd v Consumers Affairs.com, Inc, 591 F3d 250, 4th Cir 2009, for an example).

There is no liability created if the website owner limits involvement to editorial or self-regulatory control - such as deletions or selective deletions of posts and minor alterations or editing of posts - but CDA's immunity provision will not apply if the website owner makes a material, substantive contribution to the information on the site - shapes the content or actively encourages or solicits the posting of certain information.

So, despite the immunity offered by the CDA, this immunity will not protect a website from being sued anyway. The website can be named as a defendant or a co-defendant in any suit. While some courts will grant a motion to dismiss an action based on Section 230, other courts view this immunity as an affirmative defense only and will not dismiss a claim filed against the site solely based on the protection from liability that the Section may provide a website.

As this is getting long, I will provide briefer answers to your other questions, and I will provide them in another post.

 

[quincy]

The answer to your question number THREE is "it depends."

While people would have a legal right to anonymously list their opinions, concerns and complaints on the website, how exactly they express these opinions, concerns and complaints can determine whether or not what they write becomes fodder for a lawsuit.

Being able to prove the truth of what is written can defeat a defamation claim filed against a writer, but truth is not a defense for all actions (ie. invasion of privacy - publication of private facts or false light).

In addition, opinions that state or imply any false facts can be found defamatory or could result in other claims, even if the opinion includes an "in my opinion" or "I think." Any statement of opinion that could lead a reader to believe the opinion is based on undisclosed facts can be problematic.

Published complaints or criticisms of any identified individual or entity are often lawsuit magnets, so these must be written with extreme care. Unless there is solid proof of misappropriation of funds, illegal voting or any other illegal activities, anything that is written that states or implies such illegal acts or activities would be especially dangerous and could easily lead to a defamation claim.

It is the person who creates the material who is liable for what is written but, as explained earlier, the fact that someone else has written the material does not necessarily prevent the website owner from being named as co-defendant in any suit spawned by what is written on his site.

One more post for your first two questions. . . .

 

[quincy]

For the answer to your question number TWO, yes, the attorney can ask you anything he desires (within reason), even if you do not feel it is relevant to the case. The attorney can ask you who owns the website.

You do not have to answer questions, however, that are beyond the scope of your knowledge, or questions that call for speculation on your part, or questions where the answers would not be from your own personal knowledge but from something you heard from someone else. And it is your legal right to avoid answering any questions that are self-incriminating.

As for the relevance of a question, that is not for you to determine.

If the attorney asks you who owns the website and you prefer not to divulge that information, you can tell the attorney that you do not see the relevance and you won't answer the question unless ordered to do so by the judge.

However, and this answers your question number ONE, if the judge orders you to answer the attorney's question, and your reason for not answering the question is NOT based on Fifth Amendment self-incrimination grounds, you would be wise to answer the question.

If you don't answer the question after the judge has ordered you to answer the question, you can be held in contempt of court.