Is information private or is it public? Legal Hotline discussions relating to advertising content raise questions of public information, private information, privacy statutes, copyright law and the authority to advertise. Just because you find something on the Internet or from your MLS does not give you the authority to use it as public information.

"Just sold" letters

Some companies send out “just sold” letters to surrounding neighbors when a property an agent listed has sold and/or when the agent sells a property that was listed by another agent and/or company. Who can claim to have sold a property? 

Standard of Practice 12-7 provides that REALTORS^® who participated in the transaction as the listing broker or cooperating/selling broker may claim to have “sold” the property. The references to cooperating brokers in this standard include selling brokers, which are subagents, and buyers’ brokers. Accordingly, there may be two different brokers claiming to have “sold” the same property: the listing broker and the cooperating broker.

One specific “just sold” letter identifies the property, the price it sold for, names the buyer and says “perhaps you want to stop by and welcome her into her new home.” Is this just a violation of privacy and perhaps a safety issue — or is it also a legal issue?

Wis. Stat. § 995.50 is the Wisconsin right to privacy statute. An invasion of privacy occurs if one uses, for advertising purposes, the name, portrait or picture of any living person. The right to privacy is personal in nature, and a broker may not use the name or image of the buyer without consent. Although the public records will identify the buyer, using that information for a commercial purpose will violate the buyer’s rights. The price of the property will become part of the public record. If the broker wishes to use this information before it appears in the property records, the broker may ask the new property owner for consent to use the price in marketing materials.

What if the letter includes photographs of the home obtained from the MLS listing? 

Photos used in the MLS are not “public.” The use of MLS photographs of the home would be subject to copyright and the MLS rules and regulations. A cooperating broker may not use the MLS photo in the sold letter without proper consent. 

Famous previous owners 

The broker has a listing where one of the previous owners was a famous Green Bay Packers player. Can the broker advertise with the player’s name and include Packers logos and colors in the ad? 

Again, Wis. Stat. § 995.50 is the Wisconsin right to privacy statute. An invasion of privacy occurs if one uses, for advertising purposes, the name, portrait or picture of any living person without prior written consent. The use of the Green Bay Packers logo could raise trademark issues. The use of the Packers colors and general references to “green and gold” may be acceptable. 

Blind ads and advertising other brokers’ listings 

A broker in town is taking information from other brokers' MLS listings and posting these listings on Craigslist and her Facebook page. The agent is not disclosing that she is a broker nor is she disclosing that the properties are not listed by her firm. Can MLS information be used this way? 

All advertisements, regardless of where they appear, must have the consent of the seller and must contain the name of the listing broker. Advertising, including online advertising and advertising on Facebook, by a Wisconsin licensee who is also a REALTOR^® is subject to compliance with Wis. Admin. Code § REEB 24.04 and Article 12 of the REALTOR^® Code of Ethics. 

Per § REEB 24.04, licensees may not advertise in a manner that is false, deceptive or misleading and shall disclose the broker’s name exactly as printed on the broker’s license or a trade name filed with the Department of Safety and Professional Services, although there are exemptions for the sale or rental of real estate owned by the licensee. There are to be no blind ads, whether in print or online. 

Wis. Admin. Code § REEB 24.04(3) also states that “Brokers shall not advertise without the consent of the owner.” Article 12 of the Code states: “REALTORS^® shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing, and other representations.” If the listing broker and seller have given consent, the agent would be correct to clearly indicate that the agent is not the listing agent.

The fact the property is listed in the MLS does not give a cooperating broker the authority to advertise the property on Craigslist or on Facebook. If the information is obtained from the MLS, it may only be used with authority or consent per the MLS rules. The fact anyone may obtain the information electronically from the MLS does not grant them the consent to use it. The same rules apply to social media and electronic advertising outlets as to print advertising. The fact the information is going out via an electronic means does not change the applicability of the

Wisconsin Administrative Code advertising rules, the Code of Ethics, or the need for compliance with MLS copyright rules. 

Can a broker compile lists of properties in a community and send it out via email or Facebook? 

The MLS rules provide that MLS property listing data may be distributed based on the interest of prospective purchasers. It is intended that listing data be provided to prospective purchasers with a bona fide interest in purchasing or in which the participant is seeking to promote interest. Factors include how closely the types of properties are in accord with the prospective purchaser’s expressed desires and ability to purchase. 

Before distributing information, consider whether the information is being used in a “pull” or “push” scenario. “Pull” is when a prospective purchaser has expressed interest in a specific property or type of property; the broker may pull out MLS information in response to the purchaser’s request. “Push” is when the broker is selecting information about properties for a general promotion or marketing piece. The broker should not arbitrarily push MLS information because this does not comply with the reproduction restrictions in the MLS rules. When a broker submits listing information to the MLS, it is for the clearly defined and limited purpose of disseminating that information to other MLS participants. The MLS allows participants, upon the request of a potential purchaser or tenant, to provide information obtained from the MLS. 

The Internet Data Exchange (IDX) allows a limited electronic display of other participants’ listings. When operating a public website or applications for mobile devices, the participant must comply with IDX rules. The IDX rules do not authorize the use of other brokers’ listings on a Facebook page or other social media. See the Use of Copyrighted MLS Compilation provisions of the MLS Rules and Regulations. The Handbook on Multiple Listing Policy is available online at www.realtor.org/handbook-on-multiple-listing-policy.

Tracy Rucka is Director of Professional Standards and Practices for the WRA.