By: Stephen J. Nash
Nash Law Firm PLLC
Ten years ago did you have your own website? Did you regularly use email? Were you on Facebook, Fourscore, Google Plus? Did you have a Blog? Did you have a smart phone? The answer to most, if not all, of these questions is a resounding "No!" As a matter of fact, most people in the real estate industry vowed to never use these tools yet it is inconceivable today that you could be successful and still totally avoid the internet and the various internet applications.
The question is really not whether you use the internet or not but can it be used to help reduce your legal liability or does it create a legal liability nightmare?
Once It's Out There You Can't Take It Back
Everything you put on the web creates a trail that could save you or come back to haunt you. If you are not conscious of the record you are creating you are bound to put something out there that could cause you a problem.
An email trail is a great way to establish what was communicated between the parties. It can be extremely helpful if the email trail is consistent with your position. On the other hand, it can destroy you if it undercuts your position. Sometimes the problem is with what you said in the emails while other times it is in how you said it.
If you emailed to the other agent that the property includes the trees in the back yard but it turns out that trees are actually on the neighbors’ property, it will be very easy for the buyer to establish the misrepresentation.
Another example would be a website where a service is offered that violates licensing requirements. If the government regulatory agency investigates, the website will be the first piece of evidence against you. Even if you change the website, the old version can often be found floating in cyberspace.
Informality Is Great But Are You Following The Rules?
The beauty of social media is that you become a part of a community by sharing your interests, experiences and knowledge in an informal way. It allows others to better relate to you as a person and create a community of trust that will turn to you for the services or product that you offer.
The downside of social media is that we are blurring the line between what is personal and what is business. When you are in a regulated industry there are often required disclosures in business communications. For purely social communications and purely business communications this presents few problems. When the lines become blurred, how do you determine if a communication is a business communication that is subject to disclosure requirements?
Many would argue that to treat a social media communication as a business communication with its required disclosures destroys the effectiveness of social media. Whether that is true or not is for you to decide; however, if your social media communication is deemed to be a business communication you need to follow all of the required licensing regulations.
Many online communications are "cold". Sometimes the words when read can be misread because the reader misinterprets the "feelings" behind the words. The words can come across as more harsh than intended. Was that intended as humor or was the sender being serious?
The reader doesn't get to hear the tone of what was said, doesn't get to see your facial expressions and the sender does not get the benefit of seeing how it was received to correct the misunderstanding before it becomes a problem. Making matters worse is that emails and social media communications tend to be short in length and quickly written. As a result, it is easy to create a response that was totally different than what you intended.
Just Because There Is Danger Doesn't Mean That We Don't Do It.
Every day we get in our cars to go to work, to shop, to eat and to get to and from other activities yet it is probably the single most dangerous thing we do. Traffic accidents maim and kill. Everyone has been in a traffic accident or has been impacted by one yet we still get in cars.
Why do we continue to get into cars? Because riding in cars provide us with significant value. When we are young, we don't recognize or ignore the reality of the risk. As we get older, we minimize the risk by becoming "safer" drivers. We don't speed. We wear seat belts. We pay careful attention to the road and other vehicles. While we can't eliminate all risk, we attempt to limit the risk to an acceptable level.
The internet and social media is no different. They provide tremendous benefits but they are not risk free. We have to recognize the risks that are present or we will do nothing to avoid or minimize them. Once we recognize the risks, we have to have a plan so that we can use the internet and social media in a safe manner. You cannot eliminate all risk associated with the internet or social media you can limit it to an acceptable risk level.
The foregoing is not intended to constitute legal advice for any specific circumstance, but is intended to reflect broadly applicable principles, under Minnesota law, relevant to a typical situation. Each set of facts and each contract is, or can be unique; the unique facts and specific language of the contract may require a different legal analysis and may result in a different outcome. Before proceeding in reliance upon this or any other general description of law, consult with an attorney competent in the field of practice relevant to your situation.
Copyright 2011 Nash Law Firm