While there are numerous ways for a broker to legally obtain another broker’s property listings, she is often restricted on what she can do with the information. A broker may be subject to a number of public laws and private contracts based on which organizations she belongs to and which licenses she has obtained. If a broker is a licensed real estate agent, she is bound by state real estate license law. If a broker is a REALTOR®, i.e. she is a member of the National Association of REALTORS® (NAR), she is bound by the NAR Code of Ethics. If a broker participates in a multiple listing service (MLS), she is bound by the MLS’s rules. And finally, a broker may be bound by federal copyright law if the broker is distributing information that is protected under copyright. A broker may fit all, some, or none of the above categories.
In general, state real estate law, the NAR Code of Ethics, and many MLS’s rules prohibit any advertising property listing information without the consent or authorization of the listing broker. Copyright law prohibits reproduction of copyright-protected works (like listing photos) without the permission of the creator of the works. Therefore, are Facebook posts considered advertising? And if so, is there some type of consent or authorization expressly or impliedly contained within an MLS’s rules?
Advertising
In relation to real estate, the definition of advertising varies, but is generally considered to be any communication between a broker and the public. This communication is often interpreted liberally to include distribution of information in any medium, such as electronic, print, radio, television, etc. Posting information on Facebook would likely be considered a type of communication between a broker and the public. However, other factors may alter this conclusion. Facebook has many levels of privacy settings that can limit the viewing audience. Further, the form of the listing information posted can range from merely a hyperlink to another website, to a complete package of information about the property. These details add complexity to the analysis and should be reviewed in relation to the specific jurisdiction.For example, if a broker posts a listing on her Facebook page, and that page is available to all Facebook users or to all of the broker’s Facebook friends, chances are she is advertising the listing. If on the other hand the page is available only to a small group of her friends, perhaps consisting of clients looking for real estate in the neighborhood in which the listing lies, she might just be delivering listing information in the context of a brokerage relationship. But under the laws of some states, it may still be considered advertising.
We might also ask where the advertising is actually happening: If a broker posts only a link on her Facebook page that leads back to the display of the listing on her IDX web site, has she advertised the listing. IDX is unquestionably advertising, but is putting the link on Facebook to the IDX site a separate act of advertising?
Of course, even if a Facebook post is considered advertising, it still could be acceptable if the broker has the proper authorization or consent.
Permission
Each set of MLS rules is unique, but many MLSs use the NAR Model Rules as a guide. The Model Rules Section 2.7 state that advertising of another broker’s listing is prohibited without prior consent. However, three other sections within the Model Rules authorize a limited license for use of the MLS’s data compilation. First, Section 12 of the Model Rules authorizes reproduction of portions of an MLS’s compilation under certain restrictions. Second, Section 18 authorizes data display through Internet Data Exchange (IDX). Third, Section 19 authorizes data display through a Virtual Office Website (VOW).Section 12, Reproduction: Depending on the MLS’s rules, a broker may be able to reproduce a reasonable number of single copies of property listing data to prospective purchasers. In the context of Facebook, a general post to the public will likely violate this rule. Again, using restrictive privacy settings or posting only a hyperlink to another site where display is authorized may be an appropriate mechanism to satisfy this provision.
Section 18, IDX: To qualify as a display under the IDX rules, a web site must belong to a broker participating in MLS, and it must satisfy various display requirements. Facebook is a website that is not owned or operated by the IDX participating broker. The display of Facebook is also likely to fail to satisfy the requirements of the IDX rules regarding display. If Facebook does not qualify as an acceptable website platform for the dissemination of IDX data, then there is no authorization provided by this section to share other broker’s property listings. Therefore, Section 18 will probably not grant necessary authorization (though local rules might vary).
Section 19, VOW: Similar to the IDX provisions of Section 18, the VOW provisions authorize data transfer for websites that satisfy a number of requirements. However, the VOW provisions are typically even stricter than the IDX provisions. For example, before a consumer can access the information on a VOW, the broker must establish a broker-consumer relationship, as defined by state law. Typically this involves affirmative assent to the relationship by both parties, and the consumer must agree to certain terms and conditions of use when utilizing the website. Facebook does not require assent to necessary terms and conditions as defined by the Model Rules, though it does have terms of use to protect Facebook’s interests. Therefore, it is unlikely that Facebook will satisfy all the requirements of the VOW rules. If Facebook does not qualify as an acceptable VOW, then there is no authorization provided by this section to share other broker’s property listings. Therefore Section 19 will probably not grant to necessary authorization (though local rules may vary).
Summary
While Facebook may be a very fast and efficient way to distribute property listing information, brokers should be wary of potential problems arising from these actions. It is not only the MLS rules that they may violate, but also state real estate license law, the NAR Code of Ethics, and even Copyright Act. Without the proper permission, a broker cannot advertise another broker’s property information. This permission may be contained within a given MLS’s rules, but careful examination of the rules and the state laws is required to make this determination. If a broker wants to promote other brokers’ listing on her Facebook page, she will be safer if (1) she displays only a link on her Facebook page back to the listing on her IDX site; and (2) she displays the post on her Facebook page only to her Facebook friends who are clients likely interested in the property in question.What do you think? Should the MLS rules make it easier for one broker to post another broker's listings on Facebook? Should the rules clarify that it is NOT permitted? Are things fine the way they are? I'd like to hear from you.
-Brian
