Legal Corner: Social Media, Advertising and Ethics

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Sarah Louppe Petcher, Partner, S&T Law Group, Outside Counsel to DAAR

Advertising media is constantly changing. New social media platforms pop up every week giving Realtors® more choices and easier access to mass advertising. Because of the quick pace of technology, the rules, both the Code of Ethics and the Virginia Regulations, have not kept up with the pace. Here are tips to help you navigate the ever-evolving advertising world.

1. When should I use the REALTOR® logo or the term REALTOR®?
While you are strongly encouraged to use the REALTOR® logo or the term “REALTOR®” in your advertisements, this is not required. You are required, however, to state your professional status, such as principal broker, associate broker, appraiser, sales associate, property manager, real estate licensee, etc. If you do choose to use the logo, you must include the registered trademark symbol “®.”

2. Specific requirements for Social Media:
If you choose to advertise on social media websites, you are responsible for assuring that the use of the site is consistent with the Code of Ethics, local, state and federal laws, and all applicable real estate license laws and regulations.
• Advertisements must indicate your firm’s name, your team’s licensed name or registered DBA (if applicable) and your licensed name or registered DBA. You also have to state the city and state where your office is located and the jurisdictions in which you are licensed. Currently, this information has to be no more than “one click away.” As you know, this can be challenging when using Facebook, Instagram, Snapchat, etc in your advertising. As the technology has outpaced the rules, make sure that you are trying to comply with these rules to the best of your ability.
• When advertising on social media, you should familiarize yourself with the media platform’s privacy policy. It is important to remember that information posted on social media may be taken by other users and forwarded for purposes other than those which are originally intended. This is a frequent occurrence, and accordingly client information that is not meant to be public should never be posted.
• Remember, posts on social media live forever, even if you take them down. So please make sure that your posts reflect your professionalism!
• For more information, please look at this Realtor® Magazine Article

3. If you are posting content keep in mind:
There are two kinds of content. The content you create and the content you re-publish.
• Content you re-publish. You find a great article and you want to repost it keep in mind the Article 15 of the Code of Ethics. Standard of Practice 15-3 states:

“The obligation to refrain from making false or misleading statements about competitors, competitors’ businesses, and competitors’ business practices includes the duty to publish a clarification about or to remove statements made by others on electronic media the REALTOR® controls once the REALTOR® knows the statement is false or misleading.” (Adopted 1/10)

• Original Content. Article 12 of the Code of Ethics states that you have to be honest and truthful in your real estate communications. If you are going to generate original content to educate the public, your clients or fellow agents, make sure that you ascertain facts before publishing them.

As a REALTOR®, you therefore have a higher level of duty than a member of the public. If you post content, even if it is not your original content, you must delete false or misleading comments or publish clarifications about them as soon as you have determined they are false or misleading.

4. Pictures and Videos:

First and foremost, let’s address the issues surrounding the choice of pictures. If the pictures of the house highlight some of the problems of the property, can you “clean them up?” I believe that any time you make a material change on a photo which alters the physical condition of the property, you may be violating Article 12 of the Code of Ethics. Article 12 requires that you present a true picture in advertising and real estate communications. A clear violation would be to erase a visible crack in the foundation like so:

But what about removing the dandelions in the grass, or removing a cloud in the sky or removing power lines? What about heavily “staged” pictures like this one below?

This picture has been “touched up”. The tree was removed, the landscaping was enhanced. We are back to the rule of thumb that Article 12 provides us. As long as you are not misleading the public, photo touch ups are in compliance with Article 12 of the Code of Ethics.

Now you have selected your pictures and you are about to post them in the MLS. When you sign on to the MLS you agree to abide by these rules every time you upload a picture. Here is a general summary of these rule
(1) The Listing Agent represents that they have the right to upload the pictures to the MLS.
(2) The Listing Agent gives the MLS permission to use the photos.
(3) Photos and images are uploaded on a per listing basis and are not transferable to another listing.

Many other articles such as Article 2 (misrepresentation or concealment of pertinent facts about a property) and 10 (prohibits discrimination based on race, color, religion, sex, handicap, familial status, national origin and sexual orientation and gender identity) also impact how social media can be used by REALTORS® and you should therefore familiarize yourself with their content.