Every once in a while, you may come across a member of the public — or another real estate agent — who posts a negative comment about the services you provide. And while the ability for the public to comment and rate their real estate agents in the virtual world is likely here to stay, you may choose not to remain quiet. I will suggest that if you decide to respond, you remain professional and non-confrontational.
If you do come across a negative posting, you should take great care to let the person feel heard and that their opinion is respected — and no matter what, do not go on the attack.
There has been a great deal of discussion as to whether a real estate professional could sue a member of the public for a negative comment relating to the agent. In September 2013, this specific discussion came to the forefront of the legal world in the state of Washington in Kruger v. Daniel. Jeffery and Renee Kruger hired Daniel as their listing agent, but after the relationship ended, due to Kruger’s dissatisfaction that Daniel represented other homebuilders, Kruger posted a negative review of Daniel on Zillow.
After the post was online for a number of days, another agent contacted Daniel to inform him about the existence of the posting. Daniel then successfully had the review removed. Daniel sued for defamation per se, unfair competition, and intentional interference of business relationships. The Krugers defended their action under Washington’s anti-SLAPP statute, which provides a greater constitutional right for free speech and lawsuits. The court remanded the case back down to circuit court for further review. The biggest takeaway from the litigation was the fact that the court was considering the use of a freedom of speech law to protect the Krugers’ rights as the poster of the information. A summary of the case by the National Association of REALTORS® is located at www.realtor.org/legal-case-summaries/posters-of-negative-online-review-prevail. And a full summary of the court decision can be found at www.courts.wa.gov/opinions/pdf/D2%2043155-6-II%20%20Unpublished%20Opinion.pdf.
Recently, there has been a rash of negative online reviews against agents in Wisconsin, which appear to hold zero value because the reviews are not from those who have a relationship with the agent. These postings are coming from someone from the agent’s past, or in some cases, from someone who has no relationship with the agent at all.
In these types of situations, it is recommended that you reach out to the vendor of the website on which the comment is posted. Each vendor has a process detailed on its website that assists agents in addressing negative reviews. For instance, Zillow provides the “7 Tips for Handling Negative Reviews” advice article at www.zillow.com/blog/pro/7-tips-for-handling-negative-reviews-91049; and Trulia provides information regarding removing incorrect/negative reviews at www.trulia.com/voices/Using_Trulia/How_do_I_or_my_seller_remove_an_incorrect_negative-395757.
When the negative comments are posted by another agent, there are additional steps to take. Article 15 of the Code of Ethics under Duties to REALTORS® addresses this by stating, “REALTORS® shall not knowingly or recklessly make false or misleading statements about other real estate professionals, their businesses, or their business practices. (Amended 1/12).”
See Standards of Practice 15-2 and 15-3 for further discussion as to the act of making false or misleading statements about other real estate professionals and their practice by the use of technological or electronic means.
In addition, brokers should avoid making any defamatory statements about another broker or company. Generally, a defamatory statement is one that tends to harm the reputation of another so as to lower him or her in the estimation of the community or deter third persons from dealing with him or her. Such a statement may be actionable without specific proof of actual pecuniary damages. Truth is an absolute defense to such a lawsuit. Some defamatory statements may be privileged because of the relationship between the parties or because of the context in which the statement was made. A verbal defamatory statement is referred to as slander: written or printed defamation statement is referred to as libel.
Standard of Practice 15-2
The obligation to refrain from making false or misleading statements about other real estate professionals, their businesses, and their business practices includes the duty to not knowingly or recklessly publish, repeat, retransmit, or republish false or misleading statements made by others. This duty applies whether false or misleading statements are repeated in person, in writing, by technological means (e.g., the Internet), or by any other means. (Adopted 1/07, Amended 1/12)
Standard of Practice 15-3
The obligation to refrain from making false or misleading statements about other real estate professionals, their businesses, and their 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, Amended 1/12)
Cori Lamont is Director of Regulatory Affairs for the WRA.