Update late Nov. 10: Be sure to see some additional comments from Cliff Niersbach at NAR below. He corrects what may be a mistake in the way that I’ve described this. -B

In this afternoon’s NAR legal seminar for state and local association (and MLS) legal counsel, I had a chance to ask Cliff Niersbach, VP for board policy at NAR, how NAR staff would interpret certain provisions of the new IDX policy if it is adopted as proposed. My goal was to help folks going into Saturday morning’s meeting understand what it would mean in practice if it were adopted as proposed. Here are the questions I asked and my account of Cliff’s responses. (I’m sending him a link to this ASAP so he can correct or clarify if I’ve made a mistake.)

The issues I addressed in my questions where (a) the scope of the proposed policy; (b) display requirements for social media; (c) a definition of “social media”; and (d) display exceptions for “thumbnails.”

Scope of policy

According to the proposed revisions to ML policy 7.58, “Electronic display subject to this policy includes display on participants’ public websites, display on social media sites used by participants, RSS subscription, and applications for mobile devices.” My question was whether the “includes” in that sentence is exhaustive. In other words, is the list that follows “includes” exhaustive, or will other possible kinds of “electronic display” included or will they be automatically included in the future?

Cliff indicated that he believed the intent of the PAG was that this list be exhaustive. In other words, new types of media would not automatically be permitted as they are invented.

Display requirements for social media?

The proposed IDX policy would allow MLSs to require brokers displaying IDX data to use firewalls and maintain audit trails on “participants’ websites and displays controlled by participants on others’ websites.” I asked whether MLSs could impose this requirement in the case of social media and other displays (itemized) above, as this part of the language refers specifically only to “participants’ websites and displays controlled by participants on others’ websites.”

Cliff indicated that the PAG specifically excluded social media from this provision because the PAG recognized that brokers could not have this kind of control over social media sites.

This makes me somewhat distressed, as one member of the PAG has publicly said he does not believe the PAG thoroughly understood the implications of the social-media part of the proposed policy. I’m worried that Cliff may be overly confident about the PAG’s understanding of this provision and their comfort with it, particularly in light of the broader industry criticisms of the social media provisions.

Defining “social media”

I asked about how “social media” will be defined. After all, almost every Web 2.0-era business website on the planet includes functions that would count as social media, and social media capabilities could be added easily to any site. (Visit Social Go if you want to see how.) Thus, could a national franchise with its web site at www.SuperDuperRealty.com add some social media functions to its web site, thus allowing its local franchisee to send the IDX feed to the national site under this policy? (Keep in mind based on the answer to the last question, that some of the MLS’s policy requirements might not be applicable to the national franchisor site.) If the answer to that last question is “yes,” it would permit national franchisors (and basically anyone else) to get IDX data, essentially an end-run around the rescission of the “franchisor indexing” policy.

Cliff responded that NAR has not defined “social media.” Rather, he says that NAR would interpret it to mean whatever reasonable persons would commonly think of as “social media.” I asked him to confirm that the example above (of the national franchisor) would not fall into that definition, and he said it would not qualify as the kind of site commonly viewed as social media. I asked whether NAR would support MLSs interpreting “social media” narrowly, but I don’t think he actually answered that question.

Display exceptions for “thumbnails”

I noted that the proposed policy acknowledges that certain required disclosures may not be possible in displays of “minimal information,” which the policy exemplifies as “‘thumbnails’, text messages, ‘tweets’, etc., of 200 characters or less.” I asked Cliff whether a display of a listing that includes any photos of the listing would qualify under this policy as “minimal information,” and thus qualify for this exemption.

Cliff said that was not the intent of the PAG, that a display with a photo would not qualify as a display of “minimal information” and thus would not qualify for those exemptions. He said this exemption was intended to address things like SMS, tweets, and short messages. So, the NAR staff would probably interpret any display including a listing photo as being subject to any MLS disclosure requirements (such as displaying listing broker, listing agent, source of information, personal-non-commercial-use disclosure, and deemed-reliable disclosure).

I really appreciated Cliff answering these questions candidly at this point. I hope that the answers are helpful to those of you who are involved in the deliberations on Saturday.

-Brian

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Comments

  1. I got a response from Cliff Niersbach after he had a chance to review this post. My thanks to him for reading this and responding so quickly! Rather than paraphrase him, I'll just paste his response here:

    Brian:
    Your questions were good and how the policy will be applied needs to be carefully considered.

    I think you captured my responses accurately except with

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