Owners Can Record Meetings; Free Speech Rights Unclear
By Joseph Adams
Q: I recently agreed to serve on the board of my condominium association. There is one owner who comes to many of the board meetings and sits in the front row with his phone device pointed at the head table. I assume he is recording the meetings, which I understand he has the right to do. My question is whether there are any limits on what this person can do with his recordings. For example, can he take photographs of me or other board members and post them on social media type sites? (J.L; via e-mail)
A: That is a very good question and there is really no established answer in the law.
You are correct that Section 718.112(2)(b) of the Florida Condominium Act permits condominium unit owners to “tape record or videotape” meetings of the board, the membership, as well as committee meetings which are open to the members. I am not sure current personal device recording is “videotaping” a meeting (since there is no “tape”) but I suspect the law would be applied.
There is no right in the statute to take still photographs of board members, but with current technology, those lines seem rather blurred. Rule 61B-23.002(9) of the Florida Administrative Code permits a board to adopt written rules governing the recording of meetings, including rules that require prior notice before recording.
However, neither the statute nor the administrative regulations address what the owner may do with this information once he or she acquires it.
For example, I have had board members tell me that they do not want pictures of them posted on social media or other internet platforms available to the general public. While I believe that we all have a reasonable expectation of legal privacy regarding our image, those rights can be waived by engaging in conduct where an expectation of privacy is not reasonable. A political candidate speaking at an event would be a classic example.
The extent to which an association can regulate these issues is a matter of some debate. As with many issues, the law is slow to catch up with technology and societal practices. However, a 2017 Florida appellate court decision involving a dispute between an owner and his condominium association is instructive.
The association sued the owner claiming he had engaged in a continuous course of conduct designed for the purpose of harassing and intimidating the association. The case was settled by an agreement where the owner agreed to cease certain actions.
Soon thereafter, the parties were back before the judge who found the owner in contempt for violation of the settlement agreement. The court ordered the owner to stop posting any pictures or information about board members (among others) on any website, blog or social media. The owner was also ordered to remove all such information from current postings and to not start any new platforms.
On appeal, the court recited long-established First Amendment case law on “prior restraints” of free speech. Though not addressed by that court, it does remain an open question whether free speech and other constitutional rights are applicable in associations, and at least one other Florida appeals court have ruled they are not.
The appeals court overturned the contempt order and sent the case back to the trial court for further proceedings, instructing the trial court that content-based restriction on protected speech must involve “strict scrutiny”. I am not aware of what happened with this dispute after it was sent back to the trial judge.
To say the least, these are complex issues involving reasonably competing legal interests, free speech versus privacy. From my perspective, the fact that association board service is an unpaid, private endeavor aimed at managing one’s own property (all owners in a condominium own the common elements as tenants in common) tip the scale toward the privacy side.