There are three hot legal issues affecting real estate companies today that broker-owners need to keep on their radar: website accessibility, copyright infringement, and cyber fraud. During the 2017 REALTOR® Broker Summit in San Diego this week, NAR General Counsel Katie Johnson summarized how brokers are at risk and what they can do about it.
ADA Website Accessibility
The Americans with Disabilities Act clearly mandates access to physical places of public accommodation. However, the law is ambiguous regarding websites. Circuit court decisions are split on the issue, but Johnson predicts that regulations will eventually broaden to include online accessibility standards.
Generally, an accessible website interacts well with the adaptive software or technology that people with disabilities use when surfing the web. This technology will read the text on websites, including descriptions coded behind images for this specific purpose. Johnson recommends that if your business website isn’t already ADA accessible, then post an accessibility notice on your site letting users know you are striving to be compliant. Include your company’s contact information so they can reach out and help you find a way to accommodate them. Learn more about ADA compliance.
VHT, Inc., a nationwide photography services company, recently took Zillow to court for copyright infringement. VHT operated with a limited license, Johnson says, which only permitted use of its property photos while the listing was active. As soon as the property was sold, the brokers and agents no longer had rights to the images. However, Zillow was displaying photos after sale, as they were still served up through local MLSs. Zillow filed a motion to dismiss, claiming that it was not the proper defendant. However, the court ruled that Zillow must pay $8.3 million to VHT for violations. Zillow is going to appeal, Johnson says, but this case directly involves photos commissioned by everyday real estate professionals.
There are two easy actions you can take immediately to protect your company from copyright violations, Johnson says. First, require ownership or unrestricted permission for use of all your listing and marketing photos taken by professional photographers. “It sounds so easy, but very few people do it,” Johnson says. If ownership of the images isn’t an option, then the next best thing would be an exclusive license that allows your company the use of images for any real estate business purposes. Download sample agreements at nar.realtor.
There’s also the issue of other people’s photographers, such as listing images coming from IDX feeds that appear on your website. Johnson says the Digital Millennium Copyright Act provides safe harbor from liability for those who register with the U.S. Copyright Office for $6. This will help protect your company if someone contacts you about a photo you had nothing to do with on your site. If that does occur, Johnson says, act quickly to have the image taken down by calling the MLS.
One threat hitting the real estate industry particularly hard is a scheme that leads to wire fraud. It starts with email password hacking, which grants criminals access to money wiring correspondence. Johnson says passwords are usually acquired through a phishing scheme, and once they’re in, they study your email and wait for wire instructions. They use the opportunity to send their own bogus wire instructions to clients. The money is sent to a fraudulent account, usually offshore, and is gone forever.
One way to protect your clients is to be open and honest with them about this threat, Johnson says. “Get these consumers on alert,” she says. Tell them to be wary and careful when transferring funds, or don’t send instructions via email at all. Some brokerages are starting to forbid it, she says. The NAR legal team has put together a short informational video that you or your agents can share with clients explaining wire fraud and warning signs. If it does happen to any of your agents and their clients, contact the local FBI field house immediately. The FBI is actively investigating these crimes. Also, make all the financial institutions involved aware if a crime does occur. Learn more about what you can do to protect your clients against wire fraud.
—Erica Christoffer, REALTOR® Magazine