The REALTOR^® Code of Ethics is rapidly approaching its century mark. Although almost 100 years old, the Code of Ethics is actually new every year because it is amended annually to adapt to the ever-changing world of real estate practice. Many of the changes found in the 2007 Code relate to technological advances and the internet. The following questions concerning various internet- and Code of Ethics-related issues were recently asked of the Legal Hotline.

The code and the internet

Does the code apply to internet advertising?

Yes, the recent changes to the Code make it clear that brokers, whether working in person or with clients, customers or consumers through some technological means, must meet the same standards of performance and compliance with the Code of Ethics. The revised Standard of Practice 1-2 provides plainly that, “The duties imposed by the Code of Ethics encompass all real estate-related activities and transactions whether conducted in person, electronically, or through any other means,” Which, of course, begs the questions: What are “electronic means?” What are “technological means?” For example, does the Code apply to emails sent to clients and customers, information on an agent’s website or text messaging? These concepts are defined in The Code of Ethics and Arbitration Manual to include the internet, internet–based websites, all forms of internet communication, email, facsimile correspondence, telephony and all other forms of distance communication.

Out-of-town sellers

An agent is going to take a listing on a local property, but the seller lives out of state. The agent will be faxing listings, agency disclosures, real estate condition reports, etc. What precautions should be taken?

The newly adopted Standard of Practice 9-2 requires that REALTORS^® make reasonable efforts to explain the nature and disclose the specific terms of the contractual relationship being established prior to it being agreed upon by the contracting party. The fact that a client or customer is not physically in the broker’s presence does not relieve the REALTOR^® from this process. For example, when entering into a listing, the broker is required to explain the broker’s policy regarding cooperation and compensation per Standard of Practice 1-13.

Website content

An agent has a website that has a list of non-MLS properties that have sold in the agent’s market with photos and sale prices. Another agent has asked for the information to be removed, but the agent will not change the website content. If the agent didn’t sell these properties, can he have them on his website?

This question raises multiple issues including the right to use photos and copyright law as well as who can claim to have sold a property. First, for the sold listings, Standard of Practice 12-7 provides that REALTORS^® who participated in the transaction as the listing broker or cooperating broker (selling broker) may claim to have “sold” the property. Accordingly, there may be two different brokers claiming to have “sold” the same property: the listing broker and the cooperating broker. Provided the agent was the listing or cooperating broker, he can claim to have sold the property.

The second question relates to the use of another person’s photographs. Copyright vests in the photographer, so any agent using another person’s photographs must be sure to obtain proper permission. See the April 2005 Broker Supervision Newsletter at www.wra.org/BSNapr05.

Additionally, the Code of Ethics requires agents to present a true picture in representations to the public. REALTORS^® are required to maintain current and accurate information on their websites. New Standard of Practice 12-8 requires REALTORS^® to promptly take corrective action when it is apparent that information on a website is no longer current or accurate.

Websites

Can an agent have a real estate website in his or her own name?

Wisconsin Administrative Code § RL 24.04 requires all advertising to be done in the name of the broker. In addition, new Standard of Practice 12-9 requires both firm and agent websites to disclose the firm’s name and state(s) of licensure in a reasonable and readily apparent manner.

Domain names 

Is it proper for an agent to buy the domain name, BESTWIREALTOR.com.

No. There are four general rules to follow when using the National Association of REALTORS^®’ (NAR) Member Marks on the internet: 1) The term REALTOR^® cannot be used in a URL or elsewhere with descriptive words or phrases. 2) The term REALTOR^® must refer to a member or a member’s firm. 3) When using REALTOR^® in a domain name or email address, REALTOR^® does not need to be separated from the member’s name or member’s firm name with punctuation. 4) The REALTOR^® block R logo should not be used as hypertext unless establishing a link to a NAR website such as REALTOR.org or REALTOR.com. Examples and the complete Member Marks use policy are available at www.realtor.org/letterlw.nsf/pages/trademarkmanual.

Framing, metatags, content and a true picture

If a broker has used meta tags including the names and franchises of other companies in the marketplace, is this an ethics violation?

This is a probable violation because portraying a true picture in advertising per Article 12 expressly applies to all advertising whether print, URL domain names or internet use. The new Standard of Practice 12-10 prohibits REALTORS^® from:

• Engaging in deceptive or unauthorized framing of real estate brokerage websites.
• Manipulating (i.e., presenting content developed by others) listing content in any way that produces a deceptive or misleading result.
• Deceptively using meta tags, keywords or other devices/methods to direct, drive, or divert internet traffic, or to otherwise mislead consumers.

Privacy

A broker is considering setting up a website where buyers and sellers provide personal contact information that the broker intends to share with an affiliated business. What are the limitations?

The Code of Ethics honors privacy and consumer expectations regarding the sharing of information. The new Standard of Practice 12-11 provides that REALTORS^® intending to share or sell consumer information gathered via the internet shall disclose that possibility in a reasonable and readily apparent manner. This provision was adopted to give consumers recourse if their data is shared without their knowledge.

Repeating statements

Consumers have been posting disparaging remarks about another REALTOR^® member to an agent’s blog. Can the agent be found in violation of the Code of Ethics because of someone else’s statements?

Making false or misleading statements about a competitor or a competitor’s business practice is a violation of Article 15 of the Code of Ethics. Now, in a world of email, blogs, texting and internet, Standard of Practice 15-2 has been adopted so that Article 15 applies not only to statements made by the REALTOR^® him or herself, but also statements repeated, retransmitted or republished by the REALTOR^®. Members hosting blogs and other internet communication services must be diligent to review content to assure compliance with Article 15.

Tracy Rucka is a Staff Attorney for the WRA.