Facebook and other social networking websites are increasingly popular not only for individual personal use, but also for business relationships. Real estate brokers can easily make connections with potential real estate purchasers through these websites. However, an important issue is whether a broker can use Facebook to distribute another broker’s property listing information.

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

Reader Interactions

Comments

  1. I agree wholeheartedly with the general conclusion that advertising another broker's listing via Facebook wouldn't be allowed. This is clearly advertising, and it would be extremely difficult to comply with all the specific IDX rules through Facebook.

    But I do have a quibble with one particular point. You state that to qualify under the IDX rules "a web site must

  2. Great post.

    I like that you found the distinction between a public Facebook profile and a private one. If one's profile is public, then it becomes the same as advertising every broker's listings on Craigslist, which is clearly not allowed. The argument that one might "own" the Facebook page doesn't hold up because then you could open up 10-50 Facebook, Myspace,

  3. Ownership of the website is defined in our rules as: owning the second and third level domains. This is a reasonably specific definition and would question the ownership qualification for most social media web pages.

  4. Thanks Brian, comprehensive! I think this is an important topic. On the issue of private posting vs public posting on Facebook I think there is a higher bar required in the rules than just being a friend on Facebook to be able to send or post data for that persons use. Even when you use the example of getting market updates via an MLS or IDX web tool that relationship is still one to one and

  5. My principal concern is with the perception of the marketing. With Facebook, it would be very difficult for the advertised property to be displayed with the listing agent’s information present. Therefore, the general public would assume that the property is listed with the agent displaying the property on their Facebook page. I would not want all of my listings displayed on another agent’s page (

  6. Several comments touched on variations in MLS enforcement; they arise from the inevitable need to interpret the language in the model rules. Here are some further thoughts.

    @Hank:
    You wrote: “The IDX rules state that listings may be displayed by brokers or agents through ‘their websites’ – I don't believe it sets specific limits on what control the broker/agent has over the

  7. MLSs need to get ahead of this and offer a solution that abides by local rules and regulations.

    Facebook is a new form of internet – it is used nearly as much as the rest of the net.

    Check out the offering by MRED in Chicago – contact Jeff Lasky. They built a solution that is rules compliant.

  8. I have no problem with an agent or broker using the IDX or link to MLS to allow potential client to view multiple listing.. But when i spend the time to address the "do not grant other to advertise" and still see my posts and numerous ones of the same listing from the same broker on Craigslist.. another animal in itself.. it drive me batty.. That is a public site ..

  9. Many companies are moving to Dubai or United Arab Emirates because UAE is the hub. And companies find commercial properties for their offices. There are many real estate agents are running the property or real estate a person can easily find an agent in the UAE.

  10. Great blog, thank you, but it leaves me with more questions.
    As for me , I use my FB Business page, not my personal page at all.
    So I have no “friends” to share it with , only “likes” , I don’t think this was addressed, but maybe that is so simple it doesn’t need addressing?
    Next question, All I do is post the link back to my brokerage IDX site, but facebook business pages automatically pull up a preview of the property, does that make me guilty of posting more than just a link?
    Thank you for your time, I look forward to a response.
    Aloha
    Lance O

  11. I am not an agent but do marketing for a team. We write multiple blogs per week and our office is in a very high traffic area where we can display listing flyers.
    So my question is, if you write a blog about a specific group of listings, for example; Homes for sale under $400k and wish to include all homes for sale in this price range (not just your office) and the link goes directly back to your IDX which is pulled from the MLS would this be acceptable or not?
    I am working to fully understand a) why an agent would not want his/her listing advertised in as many places as possible to attract buyers and b) if a link is included back to the full listing how does this break copyright laws? Any insight would be appreciated.

Leave a Reply

Your email address will not be published. Required fields are marked *