At yesterday’s seminar, the issue of liability came up (as it always does) with many agents worried that they could get in legal danger for content that they write on a blog. My summary of what Russ is able to say quite eloquently is that the type of content that is legally appropriate for an email or other correspondence is the same for a blog. In other words, if you’re not allowed to call a neighborhood “family-friendly” to a client in person or in an email, then you can’t do it in a blog. The take home lesson is that blogging is like all other business endeavors in that an agent needs to use common-sense when blogging.
While liability is interesting, I find the concept of censorship to be a much bigger danger for the real estate community. To give an example, yesterday someone requested that I take down a set of comments he had written (over a month ago) on RCG because the powers that be (most likely his broker) did not want him blogging. Considering his comments were part of a long dialog that was already read and commented upon by hundreds of people, the request seemed hopelessly short-sighted on the part of his broker. Nonetheless, I did make the changes he requested. But this got me thinking… There really are two types of censorships that are common in the way that the real estate industry operates online:
- Censorship: When agents are censored by their brokers/industry
- Self-censorship: When agents simply refuse to take part in an online community because they are afraid that the “powers that be” might not approve of their comments
Personally, I think self-censorship is the real danger in that agents don’t even take the chance to push the limits of what it means to create an online community. If the censorship is overt, the conversations over and an agent can either live with the consequences of not having an online “voice” or move to a new broker. But when the censorship is self-imposed based on a climate of uncertainty, I think agents will have a much harder time demonstrating the expertise that they can provide to their potential clients. It seems obvious to me that agents need to have a high level of freedom if they are going to differentiate and successfully market themselves online.
I agree with you. However, as real estate agents, we do have to abide by laws that restricts what we can say/divulge. Unlike many other professions, an agent who crosses the line can be fined a considerable sum; it’s not just an issue with the broker. There’s a line between pushing the limit and getting fined, thus, self-censorship. But, I don’t agree that self-censorship disadvantages us from differientiating ourselves or refrains us from demonstrating our expertise.
Personal censorship is probably one of the core reasons why Realtors don’t participate on a much more frequent basis or just refuse to engage in conversation online with full disclosure (ie. name vs. anonymous).
While blogging is still in it’s infancy in the real estate community, I believe that due to the huge amount of industry competition between agents (agent vs agent & co. vs. co) that agents may be gun-shy or walk on eggshells to say something that may trigger traditional back-office water- cooler talk. Shame if you ask me.
On the other hand, with corporate eye-balls-looking-down-from-above censorship, it allows entry of competing players or new players(small brokers etc.) to enjoy more exposure.
Personal censorship is probably one of the core reasons why Realtors don’t participate on a much more frequent basis or just refuse to engage in conversation online with full disclosure (ie. name vs. anonymous).
While blogging is still in it’s infancy in the real estate community, I believe that due to the huge amount of industry competition between agents (agent vs agent & co. vs. co) that agents may be gun-shy or walk on eggshells to say something that may trigger traditional back-office water- cooler talk. Shame if you ask me.
On the other hand, with corporate eye-balls-looking-down-from-above censorship, it allows entry of competing players or new players(small brokers etc.) to enjoy more exposure.
It would be interesting to get a roll call from agents who have received company notices (not personal to the agent per se but company wide) regarding boundaries for blogging. If memory serves correctly, I believe Robert Gray Smith mentioned a month or two ago that Coldwell Banker Bain agents were prohibited from discussing or blogging about commissions.
Dustin –
I wish I could find the appropriate citations for this, but here goes …
My understanding (as rudimentary as it is) is that the blog owner is not liable for the comments posted on his or her blog until he starts editing the comments. Until that point, he is a conduit, providing a means of distribution for the content. Once he crosses the line to editor, that is where the potential for liability becomes more of an issue.
All that being said, I expect that someone else will come along and shoot down my understanding. 🙂
My policy has always been that so long as what I speak is true, that will be the best defense.
–Jim
Dustin –
I wish I could find the appropriate citations for this, but here goes …
My understanding (as rudimentary as it is) is that the blog owner is not liable for the comments posted on his or her blog until he starts editing the comments. Until that point, he is a conduit, providing a means of distribution for the content. Once he crosses the line to editor, that is where the potential for liability becomes more of an issue.
All that being said, I expect that someone else will come along and shoot down my understanding. 🙂
My policy has always been that so long as what I speak is true, that will be the best defense.
–Jim
Tim,
I’d be intereted to know which agents feel like they can’t contribute and why, but for obvious reasons, I doubt we’ll see them contribute that information! 😉
Tim,
I’d be intereted to know which agents feel like they can’t contribute and why, but for obvious reasons, I doubt we’ll see them contribute that information! 😉
Jim,
Your understanding is in line with comments I’ve heard from Russ (although I’d rather defer to him for the specifics). My understanding is that case law at this point is pretty solid in stating that a website host is not liable for comments posted on their site even if there is a moderation step involved. But once the host starts making changes to the content (it really doesn’t matter if it is a blog post, a comment, or something on a message board), then the rules change.
Jim,
Your understanding is in line with comments I’ve heard from Russ (although I’d rather defer to him for the specifics). My understanding is that case law at this point is pretty solid in stating that a website host is not liable for comments posted on their site even if there is a moderation step involved. But once the host starts making changes to the content (it really doesn’t matter if it is a blog post, a comment, or something on a message board), then the rules change.
Dutstin-
Precisely the reason why I asked. I doubt it too. It’s a shame because we could all learn much more about our industry if more participated.
It’s one thing to just read (and I know this site rocks with a large audience) and yell at your monitor if someone agrees or disagrees with the issue and quite another if someone would take a moment to add to the conversation.
-Tim
Dutstin-
Precisely the reason why I asked. I doubt it too. It’s a shame because we could all learn much more about our industry if more participated.
It’s one thing to just read (and I know this site rocks with a large audience) and yell at your monitor if someone agrees or disagrees with the issue and quite another if someone would take a moment to add to the conversation.
-Tim
There are many things I can say to a client that I cannot say in a blog. Though I seem to find plenty of things to talk about none-the-less 🙂 For instance, I can tell a client when a property is overpriced, or has obvious “issues”, or has a seller who pulled it off market for two months to pretend it is now “new on market”…etc.
I can’t blog about property, though I have made a couple of minor exceptions in that regard. I can’t give my opinions about property in a blog, but I can certainly do that with a client. Even if someone just called me and asked about a property, I couldn’t give my opinion to someone I don’t know. It could be the owner, it could be the agent, and it could be someone else’s buyer client.
I choose to cross the line on the commission issue because it seems that not talking about it preserves a fixed national rate, which is against anti-trust laws. The joke has been that we are NOT supposed to talk about it because that is price fixing, when in fact, not talking about it seems to be what keeps it the same across the board.
I would love to give my picks and pans of property for sale…I can’t do that on a blog. But I can hand a client a list of everything for sale and put a big red X over 65% of them, a star on 3 and say come si, come sa to the rest.
I grappled with this issue when I first started seriously blogging and came to two conclusions.
The first is similar to Jim’s thoughts. Truth matters. If I’m going to add value to the dialogue and build relationships, I have to be willing to write truthfully even if it’s uncomfortable.
The second is that legal liability must be handled as a risk factor. It isn’t a simple case of black or white, do or don’t. Yes, writing about real estate on my blog and going further than Ardell by offering my opinion about specific properties is behavior that might open me up to legal action. But there’s a relationship between risk and reward. Risk shouldn’t be turned off like a light switch but managed. And if you’re going to work in real estate or many other professions, better get used to the realities of managing for risk.
By the way, my immediate solution was to add a disclaimer to the bottom of most of my post (via the template). It reads “Our objective is to make this blog one of the best resources on the web for real estate and development in Boulder Colorado and surrounding communities. The ideas and strategies in this blog are the opinion of the writer and subject to business, economic, and competitive uncertainties. The Silver Fern Team does not provide legal, tax, or investment advice and is in no way responsible for investment results derived from this article. One should always conduct due diligence before buying or selling real estate or other investments and consult with a tax, legal, and investment advisor.” This was a better choice than adding it to the bottom of the page (I did that too) because it carries forward on every RSS feed.
I grappled with this issue when I first started seriously blogging and came to two conclusions.
The first is similar to Jim’s thoughts. Truth matters. If I’m going to add value to the dialogue and build relationships, I have to be willing to write truthfully even if it’s uncomfortable.
The second is that legal liability must be handled as a risk factor. It isn’t a simple case of black or white, do or don’t. Yes, writing about real estate on my blog and going further than Ardell by offering my opinion about specific properties is behavior that might open me up to legal action. But there’s a relationship between risk and reward. Risk shouldn’t be turned off like a light switch but managed. And if you’re going to work in real estate or many other professions, better get used to the realities of managing for risk.
By the way, my immediate solution was to add a disclaimer to the bottom of most of my post (via the template). It reads “Our objective is to make this blog one of the best resources on the web for real estate and development in Boulder Colorado and surrounding communities. The ideas and strategies in this blog are the opinion of the writer and subject to business, economic, and competitive uncertainties. The Silver Fern Team does not provide legal, tax, or investment advice and is in no way responsible for investment results derived from this article. One should always conduct due diligence before buying or selling real estate or other investments and consult with a tax, legal, and investment advisor.” This was a better choice than adding it to the bottom of the page (I did that too) because it carries forward on every RSS feed.
Osman,
Seth Godin had an interesting blog post on a related topic today and I really like the way he framed the discussion.
Instead of doing “Careful Consideration and Analysis” for each option, there are times when it is best to do a “What’s the Worst That Could Happen?” analysis.
If the worst that could happen is that you’d be sent a warning and potentially have to take down the posts you’ve written, it just ain’t that bad when the upside is appealing to internet-savvy investors in an interesting and unique way.
I really enjoy your charts by the way and while I don’t get much substantial information out of them (for better or worse, I really don’t care much about details on the Boulder market), I do show them off on a regular basis as examples of how a blogs can be used by an agent to connect with data savvy clients!
Osman,
Seth Godin had an interesting blog post on a related topic today and I really like the way he framed the discussion.
Instead of doing “Careful Consideration and Analysis” for each option, there are times when it is best to do a “What’s the Worst That Could Happen?” analysis.
If the worst that could happen is that you’d be sent a warning and potentially have to take down the posts you’ve written, it just ain’t that bad when the upside is appealing to internet-savvy investors in an interesting and unique way.
I really enjoy your charts by the way and while I don’t get much substantial information out of them (for better or worse, I really don’t care much about details on the Boulder market), I do show them off on a regular basis as examples of how a blogs can be used by an agent to connect with data savvy clients!
I like the idea of a “Worst that Could Happen” analysis in general and will have to think about ways I can apply it elsewhere.
Thanks for your comments on my charts. I enjoy data analysis, skills I learned doing equities analysis for an investment bank. The charts themselves seemed to have opened up another revenue stream: developers looking for a market analysis on their projects.