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Real Estate Brokers: Are You Responsible When Others Comment on Your Facebook Page?

With around 2.9 billion users, there’s no disputing that Facebook can offer a great space to promote your real estate brokerage and listings. It offers a level of engagement that just isn’t possible from other traditional marketing opportunities. However, with increased engagement comes increased responsibility. Facebook, as with other social media, isn’t a ‘set and forget’ model of marketing. You need to be consistently engaged, adding and responding to comments on your business page. You also need to monitor other people’s comments – not only to provide a high level of customer service, but also to manage any comments that are defamatory or potentially damaging. 

Back in 2020, there was a landmark case in Australia, where a media outlet was held responsible for the comments of one of its followers. Even though the outlet itself didn’t say anything defamatory about the person, it was still responsible.

But what about in the United States? Can real estate brokers be responsible for other people’s comments on Facebook?

Liability for Third-Party Comments in the United States

Comments from your team
Your team represents your company. So it’s not surprising that brokers may find themselves facing a lawsuit if one of their team says something defamatory on social media. Your team’s behavior might not only have legal ramifications, but it can also affect your public image and reputation in the industry. 

To avoid defamatory comments from your team, be sure to have a clear Social Media Policy and guidelines outlining the expected behaviors. Regular team training on how to respond to challenging comments or posts can also be useful. 

Comments from people outside of your organization
In the United States, the Communications Decency Act offers considerable protection from liability. Section 230 says:

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.

The Act recognizes that it’s not feasible for online ‘intermediaries’ to prevent the occasional objectionable comment or content from their social media pages. And, it offers broad protection to prevent liability for these third-party comments. 

Extra Obligations for REALTORS®

If the principals of your real estate company are NAR members,  you have additional obligations. REALTORS® have a duty to  remove statements made by others on electronic media or publish a clarification. 

Tips To Avoid a Lawsuit

Revisit your Facebook page settings
Check your Facebook page settings and ensure the profanity filter is turned on. You can also moderate content by adding words that will be flagged in future posts or comments. This means you will have a chance to review the comments/posts first before they are made public. 

Remember posting on social media is ‘publishing’
Some people are under the impression that posting on Facebook to a restricted group of friends and acquaintances is private. In a legal sense, it is in fact ‘publishing’ information. Ensure your team understands this, and that publishing information publicly can lead to liability if the content is defamatory or controversial. 

When you realize something is wrong, remove it immediately
Just because you might not be sued for third-party defamatory comments doesn’t mean you should simply ignore them. You should delete any objectionable comments immediately to prevent any harm to others and protect your brokerage from future claims. 

Depending on the situation, you may also decide to make a statement or clarification or reach out to those affected by the comment.

Consider a ‘No-Tolerance’ policy
The National Association of REALTORS® recommends a ‘no-tolerance’ policy for defamatory statements. You can show this policy on your page, group or profile on Facebook and other social media channels. 

Use disclaimers
Disclaimers can help to reduce a broker’s liability and prevent your brokerage from losing a lawsuit. Disclaim responsibility for any third-party websites linked through your Facebook page and any comments and posts from third parties not affiliated with your brokerage. 

Check your Facebook page often (at least daily) to ensure you’re on top of any third-party comments and posts. You can set up automatic notifications to make this process easier. If you can’t check your Facebook page frequently, delegate the responsibility to someone else within your brokerage to ensure it’s done. Failure to monitor your page’s content appropriately could see you facing a lawsuit.

If you want to be extra careful, you can also switch off comments as necessary.
Facebook page owners can switch off comments when the page is not being moderated, to ensure that no defamatory or potentially damaging comments can be posted in their absence. This could be useful over a holiday period, for example. But, keep in mind that switching off comments does reduce engagement and could affect your business in other ways. 

Get Insured and Seek Legal Advice As Necessary 

CRES E&O + ClaimPrevent® helps protect real estate brokers with broad coverage for specific-to-real-estate risks, as well as Pre-Claim Legal Services 7 days a week.

We have our preferred in-house programs, as well as access to an unparalleled range of options through our parent, AJ Gallagher. As real estate E&O specialists, that means we can find you the best coverage for the best price.

Contact CRES at 800-880-2747 for a confidential discussion today.

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