In order to strengthen Standard of Practice 15-2 of the Realtor Code of Ethics in the age of social media, an amendment will require a Realtor who knows a statement is false or misleading, and who controls the electronic media, to publish a clarification or remove the statement.
The amendment makes a giant leap from the original because now a Realtor is not only responsible for their own statements but for the statements of third parties. It’s akin to a Good Samaritan law– don’t help a fellow Realtor who has been maligned on your Facebook page or Flickr photostream and you’re on the hook.
Sounds easy. But it isn’t. There are three issues that need clarification:
1. The statement. Are we talking a statement of fact or opinion? It’s a big difference. Based on the use of the terms “false and misleading”, it seems obvious the statement has to be one of fact. Can an opinion (I think that fellow is a dumb ass) be false and misleading? If so, don’t let a commenter put the zestimate of a Realtor’s home on your blog. But why doesn’t the language read statement “of fact”?
2. “knows”. How exactly does a Realtor know a statement by a third party is false or misleading unless he or she has actual first hand knowledge? Just because a person says a statement is false or misleading does not logically translate to actual knowledge of truth or falsity or misleadity (is that a word?) by the Realtor. The effect is likely to be chilling on free speech since Realtors will understandably play it safe and remove statements which others say are false or misleading.
3. Fellow Realtors v. competitors. The original Standard of Practice refers to actions against a competitior , their business or their business practices:
Article 15
REALTORS® shall not knowingly or recklessly make false or misleading statements about competitors, their businesses, or their business practices.
Does this still apply to the amendment? The example reads: if someone publishes a false or misleading comment about a fellow Realtor. A fellow Realtor is not necessarily a competitor. Which is it? Is a Realtor in Hawaii obligated to clarify a false or misleading third party comment on their blog about a Realtor in Maine?
The Risks of Editing Comments
There was some concern in the blogos that the imposed burden on Realtor bloggers to edit comments might compromise their protection under 47 USC 230, known as the Communications Decency Act (CDA). It will not, unless the editing itself produces a false or misleading statement or a libel.
The Protection of Bloggers Against Third Party Commenters: The Court Cases
The issue of cyberliability of internet providers and publishers starts with Cubby Inc. v. CompuServe (Federal District Court NY 1991), where CompuServe was held not liable for forum comments because they did not moderate them. The Court found CompuServe acted more as a bookstore distributor than a publisher.
Then came Stratton Oakmont Inc. v. Prodigy (NY Supreme Court, Nassau County 1995. Note: The Supreme Court is the lowest court in NY, despite the word supreme). In that case, Prodigy was held liable as a publisher because they exercised editorial control over comments and posted guidelines (trying to be good guys). After this case, folks decided to forego any content moderation. So Congress jumped in and passed 47USC 230 to allow good guys to moderate without risk of being screwed, in the legal sense.
And then 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 was designed to protect computer service providers from 3rd party libel, even if they exercised publisher decisions like editing/deleting. Read the Court’s pro-First Amendment opinion here.
While the above cases involve computer service providers, the courts have extended CDA protection to “users” (which include bloggers) who republish third party content. see Barrett v. Rosenthal (CA Supreme Court 2006. Note: In CA, the Supreme Court IS the highest state court) and DiMeo v Max 2006.
The Communications Decency Act (47USC230) CDA: Congress Helps the Good Guys
Read 47USC 230 here. The operative protective language is found in (b) and (c):
(b) POLICY- It is the policy of the United States–
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
(c) PROTECTION FOR `GOOD SAMARITAN’ BLOCKING AND SCREENING OF OFFENSIVE MATERIAL-
(1) TREATMENT OF PUBLISHER OR SPEAKER- 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.
(2) CIVIL LIABILITY- No provider or user of an interactive computer service shall be held liable on account of–
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
Congress passed the CDA to prevent the outcome in the Prodigy case and protect folks who choose to edit comments. Therefore, if you follow the new COE rule and moderate/delete/edit comments, you will not automatically be exposed to liability under 47USC230. The only risk is if your edit produces a misleading or false statement or a libel– an unlikely scenario.
Further Reading:
NAR Code of Ethics rules for Social Media, Realtors and Associations (AgentGenius)
Related Post: How to Idiot Proof Your Blog.
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