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Avoid Social Media’s Legal and Ethical Pitfalls

In 2010, a Miami developer sued a real estate blogger for $25 million for damaging his reputation. While the case was eventually resolved, the sales associate was discharged. The lesson: Before writing online, understand the law and the Code of Ethics.

ORLANDO, Fla. – In March 2010, a Miami developer sued a real estate blogger for $25 million for damaging his reputation. While the case was eventually resolved, the sales associate was discharged by his broker. Other bloggers have made mistakes like these:

  • Posting confidential information about a listing without the seller’s permission
  • Copying and posting a copyrighted photo
  • Making statements that violate fair housing or antitrust laws
  • Misrepresenting themselves – deliberately or inadvertently
  • Violating a broker’s social media policy or the Multiple Listing Service (MLS) rules

To avoid expensive, time-consuming and embarrassing errors, social media writers and bloggers need to understand the law, the Realtor® Code of Ethics and general “rules of the road” for using social media, according to Katie Johnson, general counsel and chief member experience officer for the National Association of Realtors.

“For bloggers, the legal risks include defamation, copyright infringement, antitrust violations, Fair Housing Act violations and cyberstalking or harassment,” Johnson says. “For example, any time you make a comment that is both false and damaging to someone’s reputation, you could be liable for defamation.”

It’s a Code of Ethics violation to knowingly or recklessly make false statements about competitors – or anyone else affiliated with the real estate industry.

Johnson says social media writers should also avoid talking about the kind of tenants they want for a rental property (a potential Fair Housing Act violation) or call for a boycott of a website, publication or company (an antitrust violation). It’s also possible for a blogging “duel” or a social media war to escalate to the point of harassment. In that case, state laws against online harassment or cyberstalking may come into play.

“If you want to write about a new listing, be sure you have true and accurate information,” Johnson says. “You should also check to ensure that you have permission to use the listing photos and (that you) attribute them properly.”

Social media tips for staying on the right side of the law

Start with the basics

  • Understand the difference between facts and opinions – opinions are far more likely to create legal trouble if you go too far.
  • Don’t make negative statements about the competition, other real estate companies or affiliated professionals such as lenders and appraisers. False or inaccurate comments violate the Code of Ethics, and even true statements may be subject to different interpretations.
  • Include a disclaimer in your blog, suggests Marcie Roggow, a social media and brokerage policy manual consultant in Naples, Fla. – something like: “The opinions expressed on this blog are my personal opinions, and they don’t reflect those of my company.”

Don’t violate copyrights

It’s easy to cut-and-paste a photo from another website – but unless you have permission to do so, you may be violating U.S. copyright law. “Just because material exists on the internet doesn’t mean it’s in the public domain,” says Samuel A. Lewis, an attorney with Feldman Gale PA in Miami. If you’re writing about the Tampa Bay Rays, for instance, you can’t use the team’s logo or player photos without permission. If you’re writing about Miami’s condo market, you can’t use someone else’s photo of the skyline without approval.

“Even when you do get permission, it’s a good practice to attribute the information and mention the source in your blog,” says Johnson.

Give a true picture

It’s important to follow the Code of Ethics requirement in writing and provide a true picture in marketing. Don’t use Photoshop on a listing photo, for example, to remove unsightly utility poles or exaggerate a property’s virtues.

But there are more subtle aspects as well, according to Roggow.

“I’ve seen agents register very specific domain names for a blog post,” she says. “But they may not have the right to do so.” For example, you might register a new domain name using a high-rise condo in your local market and start blogging about the building. “If you don’t live there, have a listing there or have a business connection to the developer or condo association, you should not be using that domain name,” Roggow says. “It’s not giving the reader a true picture.” It might put you at risk for a lawsuit from the developer or association, especially if your comments have an impact on sales.

Roggow adds that Article 12 of the Code of Ethics also prohibits a Realtor from registering a domain name to prevent someone else from having it. For example, a real estate professional can’t register the name of a competing brokerage or agent – or something similar to the name – to hamper that agent’s or brokerage’s marketing efforts.

Another aspect: The Code of Ethics needs to be considered with disclosures. If a blogger promotes a specific product or service and gets income for doing so, that needs to be disclosed in the blog.

Negative comments

It’s important to have a review mechanism to prevent obscene, threatening, racist or sexist remarks from showing up. While some types of remarks should never be allowed on your site, however, it’s usually a mistake to block or delete negative comments.

“Let’s say someone had a problem with your service,” Roggow says. “If you apologize and do something to correct that problem, you have an opportunity to create a very satisfied customer.”

What happens when you see a negative comment on another blogger’s site?

“In that case, the answer is simple,” Roggow says. “Don’t respond to it.” There’s little benefit to getting into a back-and-forth argument that only calls attention to the other blogger. Stay focused on your own blog, and keep rolling along.

If you feel you simply must respond, Lublin says, you should be sure to stick to the point. “Keep your response calm, measured and accurate,” he says. If there’s a difference of opinion, for instance, you can state that in your response.

Finally, if you’ve made a mistake in your blog, or in responding to someone else, don’t be afraid to admit it. It not only makes you human, it can also make you sound trustworthy.

Source: Florida Realtor magazine, Richard Westlund

© 2020 Florida Realtors®