Section 230 Protects HOA for Publishing Meeting Minutes–Eagle Ridge Townhouse Ass’n v. Snapp

The dispute involves Galena Territory, a community governed by a property owner’s association (GTA) with several subdivisions also managed by HOAs. Homeowners in those subdivisions are members of both their subdivision HOA and the GTA. One of the subdivision HOAs had a president who allegedly engaged in self-dealing to the tune of about $600k.

Two board meeting minutes discussed the alleged self-dealing, and those minutes were published to the GTA website. The HOA president claimed defamation and sued the GTA for publishing the meeting minutes.

One set of minutes leads to a relatively easy Section 230 dismissal. “Plaintiffs argue that GTA participated in the meetings and the drafting of the minutes, so it was not merely a republisher, but a participant in the creation of the minutes.” However, the plaintiffs didn’t provide any evidence to support this claim. Instead, the “ERTA Board drafted these meeting minutes and turned them over to GTA for posting on its website. GTA’s only role was to post the minutes.” Section 230 applies.

Section 230’s application to the second set of minutes are slightly more complicated. GTA’s COO, Miller, drafted those minutes. As the minute-drafter, in theory Miller just reported on or transcribed the meeting’s proceedings. However, Miller and others from GTA also substantively participated in the meeting. That doesn’t change the conclusion:

All of the statements that plaintiffs argue defamed them were clearly attributed to Simpson in the minutes, and none of the GTA employees spoke about topics remotely related to Simpson’s statements. The mere fact that GTA employees spoke at the same meeting as Simpson when he uttered the alleged defamatory statements did not make GTA a creator or developer, in whole or in part, of Simpson’s statements.

Still, “Plaintiffs assert that Miller’s ‘preparation’ of the minutes made them ‘visible,’ ‘usable,’ and ‘available’ to others. According to plaintiffs, this made GTA a developer of the information.” The court disagrees:

To the extent that [GTA] participated in drafting the meeting minutes, it did so only in its role as property manager for ERTA. The Board still had absolute authority to accept or reject anything drafted by GTA. Thus, it cannot be said that GTA’s role in drafting the minutes was anything other than that of a “neutral conduit.” GTA can be no more responsible for the allegedly offensive content than the builder of a highway is responsible for facilitating the escape of a fleeing bank robber.

The “neutral conduit” language is like nails on the chalkboard for me, but the result is still defense-favorable. GTA gets a Section 230 defense for both sets of minutes.

Remarkably, this is not the first time a court has addressed a Section 230 “transcription” defense. In the uncited Best Western v. Furber case, the court denied summary judgment to a wife who claimed that she had acted as the typing agent or “scrivener” for her husband’s comments. The court said that the jury could reasonably conclude that the spouses collaborated on the content. However, by inference, the court implies that the wife could still qualify for Section 230 if she convinced the jury that she had literally acted as an automaton recorder of her husband’s comments. In contrast, this court didn’t see this issue as uncertain enough to send to a jury, so this court’s handling of GTA’s “transcription” Section 230 defense was far more charitable. For another case involving Section 230’s applicability to summaries, see Diamond Ranch Academy v. Filer.

This case provides another reminder that real estate lawyers need to know Section 230 and free speech laws. For some prior discussion about online censorship among HOAs, see this post.

Case citation: Eagle Ridge Townhouse Association v. Snapp, 2019 IL App (2d) 180634-U (Ill. Ct. App. Aug. 19, 2019)