There are three kinds of online advertising behavior that REALTORS® typically engage in: (1) the straightforward kind that gets your name out there; (2) the inadvertently noncompliant kind that gets you out there and ticks someone else off in the process; and (3) the knowingly noncompliant or highly questionable kind, where you hope the rewards are greater than the risks.
There’s an obvious difference between inadvertent and on-purpose violations: In one case you accidentally fail to make that left turn at Albuquerque, while in the other, of course you realize this means war. But the same laws and policies apply to both kinds of cases when a complaint gets made. The main difference will simply be how much mitigation you can show.
Some common questions REALTORS® frequently ask about online advertising, and their short-form answers, are:
Q: Can I automatically use another REALTOR’® photos or listing remarks now that I have their former listing? A: No.
Q: Can I sue someone who has used my photos or listing remarks now that they have my former listing? A: Maybe.
Q: I took a social media post down after I received a complaint about it. Can I still get into trouble for something related to that post? A: Yep.
Q: Who is responsible for the content of comments people make underneath my Facebook post? A: Eh, could be you, Doc.
Five issues in the copyright and/or social media realm these days involve, in no particular order:
REALTORS® using photos that they do not have appropriate permission to use;
REALTORS® advertising other REALTORS’® listings without the proper prerequisites;
REALTORS® engaging in misleading or downright false advertising;
REALTORS® disparaging other REALTORS® or assisting colleagues in doing so, and
REALTORS® performing the unlicensed practice of law.
I know these are frequent scenarios by the number of times I’ve been asked how to avoid them or to assist REALTORS® accused of already committing these actions, as well as by the number of ethics hearings I’ve observed as association counsel where such activities sparked the complaint. Each time something like this happens, the resulting complaint against you as a REALTOR® is never as much fun as me watching old Looney Toons cartoons while I write this article.
Take, for example, the unauthorized use of someone else’s listing photos or remarks. Copyright infringement is a hot-button issue these days, and it seems that everyone’s favorite response is, “FAIR USE!” Not so fast, you wascally wabbit. Fair use — which the dreamers will try to tell you means an unfettered entitlement to use someone else’s work once it’s in the public domain — is narrow, limited, and complicated and quite certainly not the protection many REALTORS® want it to be. It’s also only a defense that may provide any real protection after you have already been served with a lawsuit for copyright infringement. Well what did you expect in an opera? A happy ending???
For those readers who both will and won’t be attending the 2018 Real Estate Legal Summit, I encourage you to read Articles 12 and 15 of the REALTOR® Code of Ethics (actually, please read the entire COE on a regular basis); please review your licensee advertising requirements; please legally acquire all photos and remarks that you put in your listings; and please never forget to remember that “mud” spelled backwards is “dum.”
(And if you have Bugs Bunny’s or Elmer Fudd’s voices running through your head now, my real work here is done.)