LAURA'S LEGAL CORNER
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Dear Readers:
As you well know, web logs (“blogs”) are an increasingly popular tool for self expression, political discourse, and even advertising. As with any part of the internet, blogs have the power to communicate information to a great many people in a very short time. Many of these blogs are fascinating, and some are quite valuable. Keller Williams Realty would be the first to admit that, with the right focus and a professional tone, blogs can help drive business. But as you pioneer this new medium, important issues will arise that are not as quickly dismissed as you might think. Your author has heard a great deal recently from agents talking about their own blogs and their assumed respective rights and protections. Your author has heard them speak at length about the United States Constitution, the First Amendment to the United States Constitution, free speech rights, the right to say anything you want whenever you want, and other even more amazing versions of our cherished protected rights.
Readers, you must beware of believing everything that you hear! True, as citizens of the United States we enjoy unparalleled freedom to publish and speak in certain contexts. Political free speech, religious free speech, and the right of peaceable assembly are among our most sacred of privileges and the ones state and federal courts are extremely reluctant to restrict. But if you are using your blog to generate more business, there are a few things of which you * must * be very aware. Even if you think you know all of this already, go ahead and read it anyway. There are enough among you who don't appear to understand the actual law that your author, as part of her sincere efforts to help you not get sued, feels she must immediately speak out.
Commercial free speech is not protected speech in the same way that religious or political free speech is protected. Additionally, remarks about private persons - either spoken or printed - are not protected speech in the same way comments about political or public figures and individuals are. However, whether speech is political or religious or about a public figure or a political candidate is a fact question that can be enormously complex. No matter what anyone tells you about the law in general, in this area the facts underlying the publication (who it was about, what it was about, how it damaged the person's reputation, how far-reaching the publication was, whether the publication was truly public or private, whether the publication related to commercial free speech or a more important and thus more protected form of free speech, etc.) prompt questions that must be answered anew every time there is a challenge to a publication. There may be well established law that governs these facts, but the facts themselves are always different. Now that you have a general background, let's talk about the blogs themselves.
Well… I'm afraid to say that blogs are just so relatively new that there is not much law that specifically references them! Your author does not have straightforward answers for some of your questions because there simply are no answers yet. However, it is the nature of lawyers and lawmakers to use precedent to analyze and interpret new legal issues, so there are some guidelines that can be formulated that will serve you well. And while the following may be overly cautious advice, I heartily recommend that you avoid volunteering yourself as a guinea pig for bleeding-edge Blogger Law.
With that being said, here is what you need to know before you start to blog:
First of all, if the blog is intended to generate business for you as a Keller Williams agent, it is advertising. Period. This holds true even if this is only a small aspect of your otherwise personal blog. Your blog may do all kinds of wonderful things like share chicken soup recipes, promote presidential candidates, or gossip about Austin celebrity sightings, but the moment your blog develops even a hint of business generation, it becomes and remains advertising. Consequently, as a licensed broker or sales associate, you must identify yourself and your affiliation with Keller Williams, disclose your address, telephone number, etc. Section 535.154 of the TREC rules states in plain English what you must do with a published advertisement. And for the purposes of this rule, a blog is really no different than a website, or an e-mail, or a business card, or a print ad. (See Texas Administrative Code Title 22, Part 23, Chapter 535, Subchapter N, Rule 535.154: Misleading Advertising for more information.)
Second, you cannot misstate facts or state them with a reckless disregard for the truth if they damage a person or a business entity. Protected speech does not protect the maker of the publication or utterance when it fits in the category of disparagement. If you find yourself becoming negative, your author would remind you to ask yourself how such a remark is either necessary or beneficial to generating business. 99.9% of the time, you are much better off keeping the negativity in check. As everyone's mother once said, “If you can't say something nice…”
Even if you are posting or merely hosting comments made by others which are untrue and damaging, if you let them stay up on your blog you start moving into a precarious and unresolved area of the law. There just aren't many rulings on this particular legal wrinkle. But since you are technically the 'editor' of your blog, and since you have the power to promptly eliminate damaging statements, if someone contacts you complaining about a statement regarding himself or his business, you are strongly advised to take that complaint seriously. Thinking that "this is free speech so I can do whatever I want" is both foolish and potentially dangerous. Ask yourself what is so important about the statement, either one that you made or one that someone posted to your blog, that mandates putting yourself and your career at risk.
On the other hand (and this may provide you with some relief), recitals of fact are what damage reputations and create business loss, not opinions. Perhaps surprisingly, there is a world of legal difference between saying that “the Austin Board of Realtors is a gang of dummies” and “I believe that the Austin Board of Realtors is a gang of dummies”. The first is a statement of fact; the latter is your opinion. While it will probably make some people mad and result in you losing some listings, if you must be negative courts have consistently held that opinions are not damaging.
Asking questions is another way to avoid liability. Asking "is the Austin Board of Realtors a gang of dummies?" will almost certainly irritate an ABOR officer, but it is not libelous to ask a question. However, when 98 people post provocative statements about ABOR officers on your blog as a direct result of your question, you will find that you have created a dilemma for yourself and now face the aforementioned Editor's Challenge: are your blog readers and contributors just stating their opinions, or are they making damaging statements about people and professionals? Suddenly, you are right back where we started. You should have listened to mom.
A reoccurring theme throughout your practice at Keller Williams and as a licensed real estate professional is the principal of not disparaging fellow professionals. While there have not been, as of yet, any suits or grievances over disparagement, it is something else to consider if your blog is used for your professional endeavors. If nothing else, you must conduct yourself in a responsible and professional manner if you wish to remain affiliated with Keller Williams. And that, dear readers, is a straightforward rule.
Keller Williams Risk Management Plan has one of the most generous programs of legal advice and defense of any in existence. But not everything you do as an independent contractor/agent is going to entitle you to their defense, and if you are on your own you will soon learn that libel and slander suits are among the most complex and costly of any to try. Furthermore, the same activist groups that may well defend the political and free speech rights of an avant garde newspaper or a student attempting to exercise the right to pray are probably not going to step in to defend a realtor's commercial blog. And it is quite likely that neither will Keller Williams, which otherwise allows you significant latitude in your advertising and affords you a great deal of support in your every effort to market.
In the near future we will be teaching The Fog Surrounding Your Blog at the Northwest and Southwest Market Centers . If you are operating a blog or thinking about starting one, this course is highly recommended for you, complete with a fascinating overview of Free Speech and blog law!
In your every blogging adventure, we wish you the very best.
Laura Fowler and THE FOWLER LAW FIRM P.C . are very proud to begin their fifth year representing the Southwest and Northwest Keller Williams Market Centers , many of its wonderful agents and in turn their wonderful clients, family and friends. We are so grateful to so many of you who have helped to make our firm a success. The Fowler Law Firm P.C. is a full service law firm whose attorneys have many years of experience in the handling of real estate, family law, probate and estate, business formation and taxation. We never charge a client a fee or incur any expense until the client understands and agrees. In addition, we often counsel with your clients and friends and give them the information they need at no charge when we cannot truly be of service. For more information or to refer a matter to us please contact us at (512) 441-1411 or visit our website at www.thefowlerlawfirm.com .
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This information is
provided by Laura S. Fowler, Attorney at Law with
The Fowler Law Firm PC. It is not intended as a
substitute for careful review by legal counsel of
your choosing. We would be most honored to assist
you in your every real legal need.
Contact Laura
Fowler at lfowler@thefowlerlawfirm.com
or
call (512) 441-1411.
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