5 ways your negative social media posts can get you in trouble
By Peg Ritenour, Ohio REALTORS Vice President of Legal Services
For some reason, when people get behind a keyboard they become emboldened to say things that that they would never say to someone’s face. Whether it’s criticizing another REALTOR, complaining about a commission split or making snarky comments about a house you just showed, the things you post on social media can get you in trouble. And don’t be deluded to think that you are protected just because it was posted in a private group. Others in your group may not keep your posts as private as you intended.
Here are five things you should think about before posting something negative on social media:
1. Bashing other REALTORS is unprofessional and makes the industry look bad to the public. One of biggest complaints I hear about social media involves REALTORS using it as a platform to vent about their fellow REALTORS. This can involve complaints about what they believe to be another REALTOR’S unprofessionalism (i.e., not returning calls or responding to emails), or can go further, accusing them of unethical conduct or of violating the license law. Often in response, other REALTORS respond with additional accusations or negative comments.
While it may feel good to vent about a bad experience with a fellow REALTOR, your posts may have the unintended result of reflecting negatively on the entire industry in the eyes of the public. You also need to think about how a post criticizing other REALTORS reflects on your own professionalism. Does it make you look better to the public or does it make you look unprofessional?
2. You could be violating the Code of Ethics. Article 15 of the NAR Code of Ethics provides that REALTORS shall not knowingly or recklessly make false or misleading statements about other real estate professionals, their businesses or business practices. Standard of Practice 15-2 clarifies that this Article is also violated when a REALTOR knowingly or recklessly publishes, repeats, retransmits or republishes false or misleading statements, whether this is done in person, in writing, on-line, or otherwise. Thus, not only could you be in violation for making false or misleading statements about the business practices of another REALTOR, but you could also be in violation for re-posting or sharing such posts.
3. You could get sued over your post. Besides filing an ethics complaint, the brokerage or REALTOR that was the subject of your social media post could sue you for defamation. If they can show that the statements you made were false, made with some degree of malice and resulted in damage to their reputation or business you could be liable.
4. Discussions about commissions could result in an antitrust violation. When agents or brokers post, share and/or comment on other posts regarding commission issues, they are at risk of violating the antitrust laws.
Most REALTORS know that the antitrust laws prohibit price fixing, but many are unaware that this not only applies to listing fees, but also to compensation offered to cooperating REALTORS. Posts by brokers or agents that suggest or imply some sort of agreement to charge the same listing fee or to all pay the same compensation to cooperating REALTORS can potentially be evidence of an illegal agreement or conspiracy to fix prices.
In addition to price fixing, the antitrust laws also prohibit certain boycotts. An example of a boycott would be where REALTORS engage in conversations via Facebook or other social media sites suggesting and/or agreeing that REALTORS not show another brokerage’s listings and refrain from doing business with that brokerage based on its commission structure.
It is important for REALTORS to take the potential for such claims very seriously. Antitrust litigation is extremely expensive in terms of attorney fees and the potential for damages, as well as costly fines. And criminal charges can also be filed that, if proven, and can result in both criminal fines and prison time.
5. Nasty posts about a seller’s property could land you in hot water with the Ohio Real Estate Commission. Another area of exposure involves REALTORS who make derogatory comments and even post pictures or videos on social media regarding properties that are on the market. Usually these posts involve unflattering comments about the condition of the property, the owner’s decorating style, or features of the property.
Such posts have resulted in disciplinary action against agents, even in instances where the address of the property was not included in the post or the comments were made in a “closed” Facebook group. The posts became public and it wasn’t difficult for a property owner to recognize pictures of their own property online.
The takeaway from this is that what you say can sometimes have costly legal and ethical consequences. So before posting something negative about another REALTOR’s business practices, commission issues or a house you just showed, remember you are creating a written record, that never truly goes away. For this reason, think long and hard about what you write to avoid placing yourself at risk of an ethics violation or something much worse.
Legal articles provided in the Ohio REALTORS Buzz are intended to provide broad, general information about the law and is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.
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