Here’s the situation (real, not hypothetical, so I can provide additional details if needed):
The board of a 501c3 has engaged legal counsel to bring suit against the trustees of a separate endowment fund.
As a first step, a letter was sent to the five trustees with words claiming the trust is a “sham” and that it has been mismanaged.
The chair of the trustees wrote back with a veiled threat that the 501c3 board would be sued for libel.
The thing is, no one but the five trustees themselves has the letter, and there has been no public announcement of anything (on the contrary, the matter has been dealt with quietly, to avoid giving extra time for the trustees to lawyer up).
Can it be considered libel if members of an organization are directly accused of something in writing, but only the members themselves are party to the accusations?
ETA: Both organizations are incorporated in Hawaii, if location matters.
All forms of defamation require communication to some third party. Libel requires publication, meaning that the third party is everyone. Slander requires private communication to at least one other person.
If I just call you names to your face I haven’t defamed you. Someone else has to hear.
presumably the board of the 501C3 discussed the matter and decided to send the letter in a board meeting so my question is would the records of the board meetings be considered public records
The letter is not part of the minutes. A decision to authorize the Board Chairman to liaise with the attorney is in the minutes.
When the attorney prepared the letter, it was circulated via email among the board members. 100% voted to approve the sending of the letter to the Trustees. These emails are not part of the official minutes but they are readily retrievable should there ever be a need to demonstrate that the attorney’s letter reflects the will of the Board.
I hope that helps - I am happy to answer any questions if necessary (assuming I don’t need to reveal highly specific details, which I assume would be unwise, speaking in terms of the probable upcoming litigation).
ETA: We are also, AFAIK, allowed to seal minutes of any particular and keep them confidential. Plus, the only way anyone could see our minutes is by asking us. It’s not like all you have to do is Google them. That wouldn’t work as they are not on the internet or otherwise accessible without asking us to provide a copy.
If I accuse you of committing a fraud, and the accusation is made only to you, that’s not defamation. At a minimum, I would have to communicate the accusation to a third party. So if I made the accusation to your spouse, or to you and your spouse jointly, then it might be defamation.
If I accuse a board of (say) 5 persons of fraud, and I communicate this to all 5 board members, then depending on the implications it could be defamatory - e.g. if I say or imply that the the board has made false claims when applying for grants, or has written bad cheques, Arthur might think “I haven’t done anything of the kind, so it must have been one or more of Billy or Charlene or David or Elizabeth!”, and then it could be argued that I have defamed B, C, D and E to A. But it’s a pretty tenuous argument, and it depends on the accusation I am making being something that could have been done by some board members without the knowledge or participation of others.