By Robert S. Kutner, Esq. Partner, Casner & Edwards
As soon as a hot listing is signed, there is a rush to advertise it as quickly and widely as possible. Placing the listing in the MLS is the most traditional option. The advent of social media websites has opened up additional
avenues of communication, many of which can be used at little or no cost.
These include posting a notice on LinkedIn, Facebook, or MySpace, sending a tweet to followers on Twitter, and writing an entry on a personal blog. The desire is to provide information at the click of a mouse to as many
prospective buyers, brokers, and business contacts as possible. Unfortunately, transmitting information instantaneously on social media is not without risks and limitations, both legal and ethical.
It is important to realize that the same Massachusetts regulations that apply to hard copy ads apply to business communications on social media sites. Foremost among them is that all ads, including digital ones, must identify the communication as being from a broker, providing suffi cient information to identify that broker with certainty. Quite significantly, a salesperson may not advertise solely under his name.
That regulation, 254 CMR 3.00(9), specifically states that:
(a) Broker Identification. No broker may advertise real property to purchase, sell, rent, mortgage, or exchange through classifi ed advertisement or otherwise unless he/she affi rmatively discloses that he/she is a real estate broker. No broker shall insert advertisements in any advertising publication or other means where only a post offi ce box number, telephone, facsimile,electronic mail number, or street address appears. All advertisements shall include the name of the real estate broker.
(b) Salespersons Prohibited From Advertising. Salespeople are prohibited
from advertising the purchase, sale, rental, or exchange of any real property
under their own name.
For example, if you’re using Twitter to advertise a listing, a licensed salesperson must be certain to identify the broker who holds the listing. That enables a consumer to determine the identity and location of the broker. Depending upon the circumstances, it may be sufficient to disclose the broker’s name in your communications, with a link to a web page that includes the broker’s address or other identifying information.
There are not only legal regulations that apply to communications in social media, but also ethical constraints. One ethical prohibition against misleading ads has been codified by the National Association of REALTORS® as Article 12 of the Code of Ethics. It expressly provides that:
REALTORS® shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing, and other representations. REALTORS® shall ensure that their status as real estate professionals is readily apparent in their advertising, marketing, and other representations, and that the recipients of all real estate communications are, or have been, notifi ed that those communications are from a real estate professional. (Amended 1/08)
Similarly, state and federal laws prohibiting discrimination apply to business communications in social media, just as they do with newspaper ads, MLS listings, and showings. Social media communications that indicate a preference against sale or rental to a member of a protected class are prohibited.
Another danger of social media communications is the risk that a communication may be claimed to be false and, therefore, defamatory. False statements about a competitor, a seller, or any other person or their businesses may lead to a claim of liability for libel against both the agent and the associating broker (office). The informal nature of many blogs is prone to lead the writer into the pitfall of making statements without considering whether the statements may be interpreted as defamatory and without knowing to whom they may be communicated. A similar ethical prohibition is set forth in Article 15 of the Code of Ethics. It states:
REALTORS® shall not knowingly or recklessly make false or misleading statements about competitors, their businesses, or their business practices.(Amended 1/92)
On the other hand, the law generally protects the host of a website or blog from liability for libel based upon a comment or reply from others that is posted to the blog or on the host’s website, pursuant to the Federal Communications Decency Act of 1996 Title 47 of the US Code, Section 230. Section 230 states that: “No 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.”
This federal law preempts any state laws to the contrary: “[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.” A blogger can be both a provider and a user of interactive computer services. A blogger is a provider when the blogger permits others to add comments or material to a blog. The blogger is a user when creating and editing a blog through a service provider.
Nevertheless, it is wise for the host of a blog or website to follow what is posted. Allowing a site to be used as a means for discriminatory comments could lead to a lawsuit that will be time consuming and expensive to defend.
The potential for copyright infringement claims also exists with social media communications. For example, federal law provides automatic copyright protection for the photographer in each photograph. Using, copying, or posting photographs of others without their permission could lead to a claim of a copyright violation. Copyright protection is also afforded to authors for various types of works, including drawings and videos, not just published books. With that said, the phrase “It’s not personal, it’s business” is attributed to The Godfather. Using any part of the work of another in social media communications without the author’s permission is both legally and ethically questionable.
With a little care, the use of social media to promote a broker or office or to advertise a listing for sale can be both safe and rewarding.