Potential Catch-22: New NAR Code of Ethics rules on false or misleading statements in social media for both Realtors and associations

If you’re a Realtor blogger, you definitely need to be aware of this new rule.

At their Midyear meetings last week, the NAR Board of Directors approved amendments to the Code of Ethics affecting Realtors who participate in social media. Here’s an excerpt from a NAR newsletter distributed to Realtor association executives this morning:

Standard of Practice 15-2 was amended and a new Standard of Practice was approved to strengthen members’ obligations to refrain from making false or misleading statements about competitors, including in use of social media tools.

The new amendment 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. For example, if you’re publishing a blog and someone posts a false or misleading comment about a fellow REALTOR® on it, it’s your duty to remove the post or publish a clarification when you become aware of it.

Separately, the board approved a change to the NAR Bylaws, imposing the same duties on associations and MLSs as on members to not make false or misleading statements against competitors, competitors’ business practices, or competitors’ companies.

(The actual amendments to 15-2 have not been made public on Realtor.org yet. If anyone has a copy, please contact me.)

UPDATE: I have been provided a copy of the updated/new sections:

15-2 The obligation to refrain from making false or misleading statements about competitors, competitors’ businesses and competitors’ 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.

(Presumably 15-3) The obligation to refrain from making false or misleading statements about competitors, competitors’ businesses and competitors’ 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

Put simply: Once you become aware of comments posted to your blog about a competitor that are either false or misleading, Realtors (and their associations) have a duty to either remove the comment or post a clarification.

Here’s the potential Catch-22

And here’s the obligatory “I’m not a lawyer” disclaimer.

Deleting or editing comments posted to your blog could potentially open you up to legal action. You might be aware of Section 230 of Title 47 of the United States Code. This section of the Code gives Internet publishers certain protections against legal claims arising from content written by third parties (i.e. commenters).

As I understand it from this article on the Section 230 from the Electronic Freedom Foundation, the more Internet publishers take an active role in editing or publishing content posted by third parties, the more likely they are to open themselves up to legal liability.

The good news is, under these guidelines, you have a choice to remove or clarify false or misleading posts. I know what I will do.

Realtor bloggers: How will you comply with this new rule?

This entry was posted in Uncategorized. Bookmark the permalink.

50 Responses to Potential Catch-22: New NAR Code of Ethics rules on false or misleading statements in social media for both Realtors and associations

  1. I don’t know how I’ll comply. Is there a problem with deleting comments that violate the code? I am particularly fond of the delete button.

    So, when we say competitor, does the violation only occur when a particular party is named? I haven’t seen a particular agent name another agent or broker outright in a blog negatively. However, there are agents who discuss experiences in general. Sometimes, I get the feeling they write about fictitious characters. How far can the code go?

    Has NAR’s Social Media Manager weighed in on this topic yet? Todd?

  2. Brian Block says:

    Personally, I’ve never made a comment about or had a comment made about another REALTOR on my blog or on another blog or even within other modes of social media. I can’t see this arising too often except perhaps when some agents tend to rant about a transaction gone bad. I try to keep my social media efforts focused on providing good information for consumers and proving that I’m referral-worthy to other agents — not ranting about deals gone sour.

  3. I suppose I think the issue would revolve around “intent”. I think it will be a VERY rare occasion when anyone would even challenge the removal of an untrue statement about a competitor.

    If I ended up on this hailstorm, I would most like take the entire post down. That way I have taken reasonable action to protect the person being slandered. There is NOTHING that I would write that I would really want to make a federal case out of… Well, not yet anyway.

  4. Dustin says:

    Interesting… On Rain City Guide, we get the occasional comment where someone rips into a local real estate agent for doing a giving them bad service, screwing up a deal, etc. Even though I’m not a realtor, I’ve always removed those comments, or at a minimum, taken out the real estate agent’s name because I don’t like using RCG as a weapon against other agents who are almost inevitably *not* engaged online.

  5. Rob Hahn says:

    Do you guys really think this only covers blogs?

    -rsh

  6. Jim Lee says:

    Nothing new in this addition and expansion; disparaging comments and remarks have been against the Code of Ethics for years.

    “Article 15
    REALTORS® shall not knowingly or recklessly make false or misleading statements about competitors, their businesses, or their business practices. (Amended 1/92)”

  7. Jim,

    Remember that a standard of practice is used to better interpret the Article. The new part here is an obligation to take responsibility for something that someone else said on your site, or marketing venue.

    I listened to this debate at NAR. It was very interesting. Essentially, the COE is eliminating an agent’s ability to say, that something untrue on their blog doesn’t need to be taken down, since they; themselves didn’t say it.

  8. Rob Hahn says:

    @Jim –

    Okay, cool — is there any sort of an archive or rulings or something that clarifies what “false and misleading” means?

    Who has the burden of proof? If I allege that a comment on Joe the REALTOR’s blog is false and misleading, do I need to show some evidence that it is false and misleading, or does Joe the REALTOR need to show that the comment is actually true? I’m sure these issues have been hashed out before, so I’d just love a pointer to where that info is available.

    What is new about this, of course, is what Matt points out. There is now an affirmative duty on the part of any REALTOR to “delete or clarify”. That’s… amazing.

    And I agree with Ben — I do think this will increase your legal liability for defamation/libel because you may not be able to avail yourself to the safe harbor provisions of existing law covering “bulletin boards” and the like.

    -rsh

  9. Seems to me like the best option here is to have a comment moderation policy, and enforce it.

    I said this at the presentation that Heather Elias and I gave during Midyear, and I think it bears repeating– I don’t have to publish ANY comment that you make, and I can DELETE any comment that you make. While you’re in my house, you’re gonna play by my rules. I won’t allow someone else to use my venue for their own personal agenda. If they wanna write defamatory statements, they can register their own domain.

    It should be noted that the rule applies only to statements made from one member about another. If I get a REALTOR on my blog who is bashing another REALTOR, you can bet your sweet bippy that the comment ain’t getting published; or it is getting deleted, and the REALTOR who left it is getting banned.

    My house, my rules– life is too short to have to deal with trolls.

  10. Jim Duncan says:

    I think it will be a VERY rare occasion when anyone would even challenge the removal of an untrue statement about a competitor.

    I doubt this. I think that those with the power and the time and the money to challenge statements on blogs will do so – whether the comments are true or not.

    What if a commenter posts a true statement about the crappy level of service provided by a Realtor? Is it the blog owner’s responsibility to investigate and vet that comment?

    Could the clarification be, “I disavow this comment, as I do not know it to be true or untrue, but because I have a policy to not edit or remove comments, I choose to leave it. If the offended party chooses to clarify in this space, please do so.”

    The ramifications of this rule are tremendous.

  11. Jim Duncan says:

    Essentially, the COE is eliminating an agent’s ability to say, that something untrue on their blog doesn’t need to be taken down, since they; themselves didn’t say it.

    But … (bolding mine)

    duty to publish a clarification about, or to remove statements made by, others on electronic media

    I’m latching on to that “or”.

    Chilling. Absolutely chilling.

  12. Tina Merritt says:

    I see the problems occurring across social media platforms with this. What if I have a Twitterfeed on my blog for #rebcalaska and someone disparages an agent using followed by #rebcalaska? What is the limit of my liability? What if I have a link on my blog to another agent’s blog that contains a disparaging remark?

    The ruling reads that I am liable for media I “control” – is a feed considered something I can control? Is a backlink I provide on my site something I control (if it links to something that contains a comment in violation of this)?

    What about those Realtor members who have rock-star readership numbers? Are they now supposed to moderate each and every comment made on their blog?

    I feel a migraine coming on………

  13. jf.sellsius says:

    Should be no Catch 22 re 47 USC 230 moderation, as law stands now ( US Supreme Court has not spoken on the issue).

    This cyberliability of publishers/internet providers goes back to the Cubby v. Compuserv case, where Compuserve was held not liable for forum comments because they did not moderate them (not a publisher, more like a bookstore/distributor).

    Then came Stratton v. Prodigy (NY Supreme Court– which is the lowest court in NY, despite the word supreme) where Prodigy was held liable as a publisher bc they exercised editorial control over comments and posted guidelines (trying to be good guys). After this case, everyone decided to forego any content moderation. So Congress jumps in and passes 47USC 230 to allow good guys to moderate without risk of being screwed, in the legal sense.

    ANd so comes Zeran v. AOL. US Court of Appeals 4th Circuit (top court after US Supreme– so pretty powerful ruling) held AOL not liable as a publisher despite notice of defamatory statements in one of their forums. 47USC230 held to protect computer service providers from 3rd party libel, even if exercising publisher decisions like editing/deleting. Court pro-First Amendment opinion here: http://www.techlawjournal.com/courts/zeran/71112opn.htm

    See 47USC 230 “(c)” for operative language: http://www.techlawjournal.com/courts/zeran/47usc230.htm

    Granted, these cases involve computer service providers but the courts have extended protection to bloggers as “users” or providers. see DiMeo v Max 2006.

    So, if you follow the new rule and moderate/delete/edit, you will not be exposed to liability under 47USC230, despite what the Electronic Freedom dudes say.

    (please send cash for legal opinion in brown paper bag to Sellsius blog, NYC. Small bills please)

  14. jf.sellsius says:

    … unless your editing produces a libel (a deletion could not get you in trouble at all)

  15. Jim Duncan says:

    Joe –

    Editing is bad.
    Deletion could be ok?
    Clarification is ok?

  16. jf.sellsius says:

    …. meaning a deletion of the full comment.

  17. I feel that I am well versed in the COE, as I spend time in it almost every day. Of the 17 Articles and 4300+ words I assure you that I can “what if” and twist just about any of them into nightmare scenarios. It’s impossible to write any law or regulation that someone somewhere couldn’t use inappropriately.

    You’d have to have the almost perfect storm to first find someone who knew about this and was willing to write a complaint, second have a Professional Standards panel who didn’t think corrections and or removal was a reasonable action and third to have a truly liable statement.

    I don’t think that someone (consumer) commenting on your blog that they had a bad deal with an agent in the past, is really liable. If bad-mouthing someone or something was a crime, then NAR could sue just about every Realtor on RE.net.

    If we really want to be afraid of poorly written regulations, lets dig into VREB’s. Things such as “Unworthiness and Incompetence” are so ambiguous that you could just about find every licensee out here (possible even myself) in violation at one time or another.

    I think Tina is dizzy from all her “what if” scenarios. Let’s face it, this is a litigious industry. We must show all reasonable efforts to comply with regulations, but there will always be that knuckle-head out there that feels that they’ve been wronged. I have to trust that at some level someone with commonsense will make the right call, should this article every be used in a complaint.

    My naivety helps me sleep at night.

  18. Cindy Jones says:

    I am glad to see this added to our regulations. There are still some “gray” areas that needed to be examined. Reading blogs across the spectrum I see some agents who statements on their blog and everyone says “bravo”. Yet another agent makes the same statement and they are accused of violating the COE and far worse. How will the COE be equatably enforced and is it up to us as agents to file a complaint if someone makes false or misleading statements about us?

  19. jf.sellsius says:

    @ Jim Duncan

    -Deletion of the comment is 100% OK
    -Editing not bad unless edit results in a false or misleading statement or libel (also no 47USC 230 problem)
    -Clarification OK unless clarification results in a false or misleading statement or libel.
    The reason editing and clarification can cause problems is because YOU are molding a new statement which itself can be false or misleading or libelous.

    Deletion of entire comment is safest.

  20. @Joe: Far be it from me to argue with a lawyer, and with all due respect, it is cold comfort knowing that you and EFF offer different advice about editing or deleting comments. I think I am leaning towards your way of thinking on this, though.

  21. ARDELL says:

    Everyone is focusing on the word “agent”. The reality is that most of the disparaging blog posts already on agent blogs are aimed against certain company(s). Whether or not those company(s) are Realtor Members might be what many bloggers will have to check as a result of this amendment.

    Said Company(s) may not be a Realtor Member in the Seattle Office, and yet be a Realtor Member in their California offices.

    Could get interesting.

  22. Jay Thompson says:

    Well isn’t this interesting. There are several points made here that some clarification would be nice to have, but God knows the last thing I want to do is ask the NAR for a clarification on something…

    In over four years of blogging, I’ve never made a disparaging remark about a fellow Realtor — by name. I’ve deleted a few comments where people have said, “My realtor Jane Doe is an incompetent dolt” (or words to that effect). Hey, it’s my blog, and I’ll delete what I want to.

    Here’s a question for the CoE experts. If I write a blog post and say, “Any agent that does “xyz” is an idiot” is that a Code violation? (’cause I have done that). To me that is far different than saying, “Jane Doe is an idiot”.

    I have a comment policy (and a link to it right above the comment submit button). In that policy it states, “Personal attacks will not be tolerated and will be deleted.” I have no idea if that holds any legal weight (though it seems like it should), but it helps me sleep better at night.

  23. ARDELL says:

    Jay,

    I think as long as you say “agent” and not “Realtor” :)

    It’s sad though. It’s like telling the world agents aren’t “allowed” to be honest. And here we thought transparency was on the rise. Not that I want to badmouth anyone in particular. But “speak no evil” is just so…yesterday’s news.

    “good news only” is really why the public doesn’t trust the industry. When are “they” going to get that?

  24. Jay Thompson says:

    “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

    My emphasis in bold.

    So who determines when or if I should know a statement is false or misleading?

    Say Realtor A leaves a comment on my blog along the lines of:

    “Realtor B does not know how to complete a purchase contract”

    Maybe that’s true. If it is true, then saying it isn’t false or misleading.

    Am **I** the one that now has to vet Realtor B’s ability to complete a contract?

    And maybe it’s false. Maybe Realtor B is perfectly capable of completing a contract and Realtor A just doesn’t like them. So if I take the “once I know the statement is false” literally, I may never know the statement is false. Or maybe it takes me six months to figure it out….

    (Now in reality, I would simply delete the comment as soon as I saw it. I don’t have the time nor inclination to investigate every comment left. But the point is, how can the CoE police possibly enforce this?)

    What we have here is further evidence that you can’t write enough rules, policies and codes to legislate common sense and decency.

  25. Jim Duncan says:

    re:

    Far be it from me to argue with a lawyer, and with all due respect, it is cold comfort knowing that you and EFF offer different advice about editing or deleting comments.

    What Ben said.

    Two things:

    1 – Shouldn’t the NAR give guidance on how this jives with existing case law?
    2 – As a point of disclosure, I am on the NAR Professional Standards Committee and spoke against the deletion part of this in large part due to my belief that all blogs should have and abide by a comment policy and that I have always read the EFF as a definitive source for protecting my liability as a blogger
    3 – I’m sticking with the “or” in the policy.

    From the above-linked EFF page:

    What is this “Section 230” thing anyway?
    Section 230 refers to Section 230 of Title 47 of the United States Code (47 USC § 230). It was passed as part of the much-maligned Communication Decency Act of 1996. Many aspects of the CDA were unconstitutional restrictions of freedom of speech (and, with EFF’s help, struck down by the Supreme Court), but this section survived and has been a valuable defense for Internet intermediaries ever since.

    What protection does Section 230 provide?
    Section 230 says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This federal law preempts any state laws to the contrary: “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” The courts have repeatedly rejected attempts to limit the reach of Section 230 to “traditional” Internet service providers, instead treating many diverse entities as “interactive computer service providers.”

    How does Section 230 apply to bloggers?
    Bloggers can be both a provider and a user of interactive computer services. Bloggers are users when they create and edit blogs through a service provider, and they are providers to the extent that they allow third parties to add comments or other material to their blogs.

    Your readers’ comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it. However, if you selected the third-party information yourself, no court has ruled whether this information would be considered “provided” to you. One court has limited Section 230 immunity to situations in which the originator “furnished it to the provider or user under circumstances in which a reasonable person…would conclude that the information was provided for publication on the Internet….”

    So if you are actively going out and gathering data on your own, then republishing it on your blog, we cannot guarantee that Section 230 would shield you from liability. But we believe that Section 230 should cover information a blogger has selected from other blogs or elsewhere on the Internet, since the originator provided the information for publication to the world. However, no court has ruled on this.

  26. In the many places I’ve worked, we’ve bumped into this issue. The law — and it comes most recently from a ruling regarding the Communications Decency Act (protecting kids from porn) — gives board moderators ‘safe harbor’ as long as they don’t edit comments. Once you do that, you are in effect taking responsibility for every comment on your site.

    So the rule I’ve always followed and been told to follow is “leave it or delete it, but don’t edit it.”

    The only stretch I’ve ever made (because the site didn’t allow editing by comment posters), was contacting a poster and saying, “I have to delete this unless you give me permission to make the following changes…”

    Which means — and, like Ben, IANAL — that the NAR requires that you delete any offending comments.

    Which of course brings up the issue “What’s offending?” But that’s another issue….

  27. Cindy Jones says:

    Okay I’m going to get specific. An agent states on their blog that another agent has violated copyright laws, yet US Copyright Law has not be violated. They then allow other agents to make the same statement in their comments. Even when they are informed that the original statement is incorrect, they do not post a clarification, remove their post or delete the other comments. Does this constitute a violation of Article 15.2 and 15.3? If so then who is responsible for making sure that the post and the comments are removed? The original poster or the agent who was libeled? Does it take action by the local board to make that happen?

  28. Cindy,

    The problem with the Professional Standard Hearings is that the decision is based on a “preponderance of the evidence” and not “beyond a reasonable doubt”. I make this point, because there is always additional considerations brought out in COE hearings that cannot be anticipated in “what if” situations.

    With the information provided in your last comment, I would yes; a potential violation of Article 15 (you’re never in violation of the standards of practice, they are merely used to interpret the Article). With the newly adopted SOP, that will take affect in January of 2010, I think that there was inferred an affirmative obligation of the blog hoster to remove or correct) the comment alleging a violation of the copyright laws at the point that it became known that the fact was untrue.

    The burden the complainant would have is to PROVE at what point the Blog Host would received constructive and reliable knowledge that the fact was untrue. I think the same standard may constitute an potential violation of those who resubmitted the information , if the complainant could PROVE that those who re-submitted the information should have known it was false.

    My best recommendation in this scenario is for the Blog Author to remove the offending comment, and make a follow up comment stating that they did so, because they were made aware the statement was not true. This removes the source of the information and puts everyone else on alert to not republish it.

    That’s just my opinion. The reality is that the SocMed world is spinning so fast that everything is conjecture at this point. We won’t really know the answer until some courts rule on these issues. Even then, it’ll be very story-specific.

    I honestly don’t see how this is any different than when folks TALK about other people, it’s still slander the only difference is that it’s easier to prove on a webpage than when it’s spoken. Both are actionable offenses.

  29. Sorry… I seemed to have blog-jacked again… :)

  30. Hank Lerner says:

    It is my understanding that a key part of the SoP is that the Realtor “knows” the statement is “false or misleading.” Unlike the VOW rules (section 19.8) which requires removal of “false” information “within forty-eight hours following receipt of a communication from the listing broker explaining why the data or information is false,” this SoP kicks in any time the Realtor “knows” that the information is false or misleading. So on the one hand, even if he’s told that something is false the Realtor has the discretion to decide for himself if that’s the case. If another agent calls to whine about something there is no duty to remove/clarify just because of the notification. On the other hand, it may be possible for a complainant in an ethics case to prove to a hearing panel that something was so obviously incorrect that the Realtor should have “known” it was false or misleading even without being told about it. For example, “Respondent broker has a comment policy that says he reviews and deletes offensive comments, so it should be assumed he read this comment and should have known to remove it.”

    At the end of the day though, as with all other Articles and Standards of Practice, the final interpretation of the facts and circumstances in any complaint will be up to individual hearing panels.

  31. Pingback: More concerns raised about NAR’s amended Standards of Practice on deleting or clarifying “false or misleading” blog comments | VARbuzz

  32. Jim Duncan says:

    At the end of the day though, as with all other Articles and Standards of Practice, the final interpretation of the facts and circumstances in any complaint will be up to individual hearing panels.

    And here’s my call for transparency – I would like for hearings – and transcripts – to be made available to NAR members. Redact what needs redacting, but if these hearings remain locked up, nobody learns.

  33. Jim,

    I disagree that no one learns… I think that the release of the transcripts of rulings is nothing more than ammunition for the gossip mongers. The information in the hearings can be and generally are, later developed into case studies and to better define the standards of practice, used in a controlled setting to convey the points.

    If all hearings were released than you would just have more bad decisions based on previously held bad decisions.

    Again…Until such a time as “beyond a reasonable doubt” is the standard, the transparency could hold no more than to harm agents.

    I know that there is not one agent out there who hasn’t violated the code. Just look at 1-13 and 1-15. I know that not every agent tells their buyer that the buyers offer IS NOT confidential, every time that buyer signs the offer to purchase. The rule has been around since January 2006. If I were to author a complaint about an agent based on Article 1; I really wouldn’t the entire world knowing. The other agents would simply label the other agent “unethical”, regardless of the significance (or not) of the violation.

    The point of the COE hearing should be to correct behavior, as should the discipline imposed. Professional standards should not be a tool to simply eliminate competition.

  34. Tom Royce says:

    Here is a dumb question, but has to be asked.

    At what stage does the NAR and their rules make it to onerous to remain a member? I know there is value in the eyes of the consumer, but after a while the meddling of the NAR into every aspect of an agents business may be detrimental.

    Regarding this issue I have always monitored my comments and recognize the need for it. Changes and deletions are made when needed. As Daniel said, it is my house.

    But the use of the NAR as a means to stop innovation to protect the old guard is becoming more and more apparent.

  35. jf.sellsius says:

    @Benn
    I am not disagreeing with EFF– only clarifying– editing does not automatically expose you to liability under CDA. In fact, Congress passed the law to protect those that edit and have comment policies. Before the CDA, Prodigy was held liable for having a comment policy and editing while in the earlier CompuServe case, Compuserv was not liable because they did not edit. Congress passed the act to level the playing field and protect the good guys who had a comment policy and edited.
    The risk in editing is if you somehow create a defamatory statement by the edit– not likely.

  36. Tom,

    I agree that NAR tends to overwhelm the practitioner and should be spending more time creating resources and less time molding the industry. That said, if they were to go away tomorrow, some other group would start and because people will always be people, we’d be right back here again.

    Should we do away with licensing laws, too? I mean they really get in the way of doing business. RESPA could go by the wayside and then those pesky traffic laws – I mean really….they totally cramp my desire to speed.

    I personally would like a regulation that protected my reputation online, from a blogger who desired to lie about me. I don’t think NAR has the perfect formula here, but it’s a start.

    Yes, the Association has some serious issues and some growing pains, but tell me one group of people who doesn’t have issues…

  37. Tom Royce says:

    Matt

    I do not have any problem with licensing or consumer protection laws. (well, not a huge problem…) They have their purpose as does the NAR. The NAR should be the foil to show politicians that self regulation works and not to make laws that initiate the “law of unintended consequences”.

    For me it seems like that the NAR is great to protect the average from the weak and incompetent, but it gets in the way of the superstars who are ahead of the curve. Since selling a home is much harder now than before, the fear I have is that it will be used to protect the obsolete from the cutting edge as we are seeing with the discussions this past week.

    Thanks for helping me to clarify my thoughts.

  38. Tom,

    That makes more sense to me. Frankly, (I said this at the NAR Pro Standards Forum) I am having a hard time justifying the COE complaint process when most states have laws that mirror so closely.

    Even this new amendment…. I thought I always had a civil remedy for those who defamed me. I can sue those people, so why would I write the ethics complaint, when I could attempt to get damages for the same act?

  39. My last comment compels me to ask this question:

    Should the COE continue to adopt new standards that address issues, I could address in court? Is the COE even relevant any longer?

  40. “I agree that NAR tends to overwhelm the practitioner and should be spending more time creating resources and less time molding the industry. That said, if they were to go away tomorrow, some other group would start and because people will always be people, we’d be right back here again.”

    Many of NAR’s member look to the COE for guidance. I’m consistently solicited for best practices on every aspect of social networking. So that’s why this stuff gets written.

    If I were an agent, I don’t think this policy would have any bearing at all on how I did business. I wouldn’t need the CEO to know that I wouldn’t allow one human to make disparaging and untrue remarks about another human on my blog.

    I deleted 100’s of posts while running Lenderama.

  41. Todd,

    I’m a certified instructor, have sat as a panel member, chaired Grievance and now have completed the advanced Pro Standards Administrator Course. It’s a primary part of my daily job. We implement COE issues in our Tech Risk Management class and I field questions nearly daily.

    I say all this to build the foundation for my opinion. In Virginia the COE mirrors the regulations very closely and in fact the Virginia regs are more restrictive if taken literally in regards to marketing.

    My experience is that agents put far less weight in the COE, than they do the state law. The penalties are typically more severe at the state level.

    While traveling around RE.net and hearing the many, many Realtors lament their membership; I’ve never heard them say “The only reason I stay is the COE”. To the contrary it’s typically Lockboxes and MLS.

    I am not supporting that it should be done away with, but merely considered more carefully, when being changed. The COE has significantly influenced the laws; but it’s not the end-all-be-all of the organization.

    The COE does not make the Association relative to the membership. Most rarely use it. Services and tools should be were the Association’s concentrations should be. Supporting good members – not making their jobs harder.

  42. Jay Thompson says:

    I’ve said it before, and I’ll say it again…

    No document, written by anyone, is going to dictate my ethics or behavior.

    My parents did a pretty good job instilling in me what is right and wrong. Raising your right hand and swearing to uphold a Code of Ethics doesn’t make one ethical.

    If someone posts disparaging and untrue remarks about someone else on my blog, that comment will be deleted and the user banned. Period. I don’t care if they are a Realtor or not, sworn to uphold some CoE or not. If they don’t like it, tough. Sue me.

  43. Jim and Matt raise an interesting point about ethics hearings and transparency. At the risk of jacking this thread, I’ll throw in my two cents, from my perspective as a basketball referee–

    The problem with the “Code of Ethics” is that it has little to do with ethics, and a lot to do with rules and standards of practice. As is often said, “you can’t legislate ethics.” The issue here, one that Matt touched on, is that while an agent might violate the CoE, that doesn’t make them “unethical;” at least not in my book. The presupposition that exists that anyone with a CoE violation is, de facto, “unethical,” is a problem and one of the reasons that complete transparency could become an issue. As Matt mentioned, it could turn the CoE into a tool for eliminating competition.

    On the other hand, transparency could help everyone view the CoE as it should be viewed– as a rule book for the profession. In basketball, there are escalating levels of fouls from “common” to “flagrant.” In a basketball game, it is possible to commit a foul (a rules violation) and not be viewed as a dirty or enethical player. The only way that determination can be made, however, is if everyone sees the play happen and is able to decide for themselves how dirty or unethical it might have been. Of course, basketball games are played before audiences, and everyone gets to see it. The practice of real estate is not.

    Perhaps one positive side-effect of opening up the ethics hearing process would be that we, as a community of professionals, would be able to better determine what violati0ns are deserving of harsh treatment, and which ones are just mistakes. Either way, everyone should learn something.

    As a sidebar, I also realize that REALTORS are highly unlikely to actually file ethics violations against fellow members, so I’m not really sure how much fodder would really be out there. I guess it would vary by association.

  44. Hank Lerner says:

    Jim/Matthew:

    I agree that release of transcripts – and even specific outcomes – probably wouldn’t be helpful in the vast majority of cases and would just end up with a lot of gossipy finger pointing. That said, I can tell you that in our statewide ProStandards training and in various other ethics-related presentations I’ve done I certainly try to work in some “real life” scenarios (names and relevant facts changed to protect the guilty) to give a better flavor of what has really happened in hearings rather than focusing too much on all the what-ifs.

    That said, I’m concerned with a related change approved at Mid-Year that seems to make it easier for these facts to be widely disseminated. Section 23(j) of the CEAM regarding confidentiality was amended to now read that only a limited number of people can know about the results of an ethics hearing “…unless notification is required to ensure compliance with the Board’s bylaws (e.g. where a petition for removal of an officer or director must state the reason(s) an officer or director is deemed disqualified from further service).” As I read this new change, if a local association adopts a bylaws provision mandating additional publication of information about an ethics case, it would be permitted. And that scares me — especially if locals can all set their own rules.

  45. Pingback: NAR Code of Ethics Amendment Imposes Duty on Realtor For Statements of Third Parties in Social Media

  46. Here they go again, getting involved in an area of law that is well beyond NAR’s board members ability to understand the ramifications of their actions. Not that I condone competitor bashing on any of my blogs but if someone writes a comment on a property of mine it should not be NAR’s business to put me into possible legal jeopardy with their poorly thought out rules.

    Just my 2 cents.

    Jim

  47. Jim B,

    “Here they go again, getting involved in an area of law that is well beyond NAR’s board members ability to understand the ramifications of their actions.”

    There were two primary individuals who were on the committee that presented this. Those two lead most of the debate and are among the elite of the RE.net Social Media World. In addition there were several attorneys on the committee or staff that chimed in.

    There was a lot of insightful people in that workgroup. Trying to create rules for something as fluid as social media is difficult at best. Not everyone was without knowledge.

  48. Matthew, Not meaning to be combative or anything, but that is what people were saying before NAR’s relationship with the DOJ turned so wonderful, or when they decided not to decide for 6 months on the new IDX rules last week.

    I have been watching what NAR does for about 6 years now and have been of the opinion that the less they do the better.

    Just my 2 cents of course.

    Jim

  49. Jim,

    I don’t consider healthy debate the same as being combative. We’re in a good enviroment for this type of conversation. I can appreciate your position.

    I suppose my opinion on this matter is really conjecture. We won’t know if these decisions are the right ones or not until they are history…

  50. Pingback: If A Realtor is Unethical in the Woods | Real Estate Opinion MAG - AgentGenius

Leave a Reply

Your email address will not be published. Required fields are marked *