Author: Steven D. Spile, Esq., Strategic Defense Panel Attorney Spile, Leff & Goor, LLP
1. There is a natural tension between what is done to market and network, on the one hand, and what is done to avoid legal exposure, on the other hand. Most often the more aggressive one is in their marketing efforts the more risk they face for potential claims. The key is to be sure to make an informed decision regarding how to balance these competing interests.
2. Social media is really no different than all the prior forms of marketing and networking. It is simply more risky because of the greater sphere of recipients. As such, many of the same principles apply. Make sure: a) all the information is accurate; b) impacted parties (such as a seller) have approved what you will be posting; c) the scope of your postings is appropriate for the circumstances; i.e. you are not violating any laws such as fair housing, RESPA, etc. Do not allow the informality of social media to interfere with your meeting all standards of care.
3. Be careful with anything you may post regarding another broker's listing. Before posting you should get the listing broker's permission. One particularly vulnerable area is anything which may lead viewers to think you are a listing agent when you are not (e.g., "Call me for more information about this listing" when, in fact, it is not your listing). Claims for misappropriation of listings have become more common.
4. Similarly, be sure you have proper permission from the principles. There are various rights of privacy and publicity which are very vulnerable when it comes to social media. In particular, pictures of a property, private factors ("divorce," "motivated seller," "short sale," etc.) should be used very judiciously and only after approved in writing by your clients.
5. Recognize the risks associated with violating the intellectual property rights of others, including copyrights, trademarks, etc. This includes pictures, logos, videos, music, names, etc. In this regard, take note that you cannot use the Realtor
® logo as a link to anything but the NAR Website.
6. It is a wise decision to never post any comments of any nature about people, companies, or any other form of entity. The risk of a claim for defamation is both real and potentially expensive. Similarly, do not use social media for gossip. This is a particularly risky activity in which many inadvertently become involved. Limit posts to facts about the property or yourself.
7. Recognize that things you post on social media may be accessible in perpetuity. As such, make sure the information is not vulnerable to becoming outdated or inaccurate. Whenever possible make sure you have dates in postings as to when the material is to be viewed as current. Monitor your postings regularly, including modifying or removing when they are no longer accurate and/or appropriate.
8. Recognize you may need special insurance for social media (copyright infringement, defamation, privacy violations, etc.) as issues may not be covered under standard E & O policies. Make sure you look at all your policies and that all risks are covered. Having a single insurance broker may be of greater help in this regard. In addition, recognize there are unique risks such as loss of data if materials are not properly stored; piracy; unintended dissemination; etc.
9. "When in doubt - leave it out." It is better not to publish an item than later find that it was inappropriate. Once it is out in the cyber-world it is out for all to see and potentially raise a claim. Ask yourself if you would want the post to be on a billboard, on a major street, or on a large screen in a courthouse, or on the desk of the D.R.E. Commissioner. If the answer is not a comfortable "YES" then do not post the item. More simply stated: Use common sense in your social media activities.
10. The button which says "SEND" is not your friend! The button which says "DELETE" cannot compete!