This article was last updated April 6, 2024.
If you're a real estate broker or agent, your social media friends and followers list is probably full of other agents, both in your local market and across the country. If that's the case, your feed is full of client photos and videos.
Clients looking at houses. Clients considering houses. Clients signing contracts. Clients holding "Sold" signs. I recently saw a discussion online in which a broker had a phone call from a FSBO asking if they could borrow a sold sign so that they could take the "traditional" Sold pic for their own Facebook page.
Now, I'm a former schoolteacher and I think a lot about liability issues. Force of habit, I guess, from years of thinking about classroom and student safety, best practices, etc. And that bleeds into how I think as a former Realtor and a current real estate writer.
Legal issues, safety, accuracy — these are things we talk about frequently as Realtors. There must be, I reasoned, a best way to conduct client-centered marketing. There must be some information out there about how to protect yourself, your brokerage, and your clients.
What I found was virtually no information about client photos on social media or in advertising for real estate. When I went on social media and asked other Realtors what kinds of releases they used, they all said none. No written permission. No photo release. Not even verbal agreements with the clients. They often didn't even discuss it.
Then I contacted NAR. The only legal advice concerned legal issues surrounding property photos and their copyright and ownership issues. Jon, the very nice media rep I talked to, directed me to a 2013 article from Realtor magazine which encouraged brokers to create policies around social media sharing. Think how much social media marketing has changed and expanded since 2013 and how little discussion there still is around this issue.
Absent input from an attorney (which I would welcome — hit me up in the comments!) I thought I would include some common sense tips for improving your CYA factor when using client photos and videos in your social media plan. This list is by no means exhaustive, but hopefully it can start a dialog and help us all think through how to protect ourselves and our clients.
1. No kids pics: This would be my biggest piece of advice for ensuring that you don't open yourself up to liability or upset your clients. Many people don't even want pics of their children shared on social media when attending camps or birthday parties. They certainly would not welcome photos of their children at what is, potentially, their new home. For safety's sake, leave children's info and photos off of your feed.
2. Leave out property opinions: Posting a client's opinion of a property — good or bad — is a fine way to open yourself up to liability.
Client loves the property? You may have just undermined their negotiating position if the property owner or listing agent happens to see that post. Client hates the property? You may have just opened yourself up to a lawsuit if the homeowner believes your implied evaluation of their property diminished its value or made it impossible to sell.
Tread very carefully here and make sure there is no way for anyone to know what property is being discussed.
3. Make a signed release part of your standard forms package: A form like the one embedded below, filled in with your company's details, can provide a layer of protection for you and give you the opportunity to speak with clients about their preferences regarding the use of their images.
Some clients will be happy to sign; some will say no. At least you will have had the conversation and won't risk your professional relationship and reputation by using their images against their will.
4. If you're a broker, have this discussion with your agents: Just because they are independent contractors does not mean that you can't create guidelines for the agents who work for you. You can absolutely make a signed photo release part of your forms requirement or brokerage agreement.
It is in your interest to do so since liability for unwise and unpermitted use of images, video, etc. may accrue to you and your brokerage. Clear guidelines and procedures (as well as the advice of an attorney) can save you a lot of trouble and money down the road.
Best practices should be part of the conversation at the regional and state association levels as well. But until we have more clearly defined guidelines in place, it will be the responsibility of agents and brokers to make sensible decisions about safety, client protocol, and limitation of liability. Protect your clients, and yourself, with a social media plan before you post.