Privacy Protected: What it means and what it doesn’t

by Paul Cowhig, Professional Standards Advisor

Many members seem to think that the Privacy Protected status on their listings will keep other members from ever contacting those clients/sellers in the future. That is not correct.

It simply means that other REALTORS® must not use the MLS® as their source for the information they use to communicate with the seller. This is specified in the Rules of Cooperation 6.06, Privacy-Protected Listings, and on the Privacy Notice and Consent form.

If a REALTOR® communicates with a Privacy Protected seller and that REALTOR® has obtained the seller’s contact information from another source, there has been no breach of RoC 6.06.

Real examples

Real world examples of this are cold calling, or a general advertising mail-out to a geographic area (or to an identifiable group of people), which may result in a member contacting a seller who has opted out of the use of the MLS® information being used for that purpose .

But remember that mail- outs should always include a prominent disclaimer as mentioned in RoC 6.07 – “this is not intended to cause or induce a breach of an existing agency agreement.” 

Client be warned

I get phone calls from very upset REALTORS® (and some of their sellers), whose clients have opted for Privacy Protected status, but have been contacted by another REALTOR®, often through a mail-out.

That usually means that the Listing Agent has failed to explain the limitations of what Privacy Protected covers. A large part of a REALTORS® job is to manage client expectations and that means you need to know and fully explain all the details, so your clients are never surprised or taken off guard. They should always know what to expect.

Privacy Protected does not mean the seller will never be solicited; it only means that information on the MLS® System will not be used for that purpose, and they need to know the limitations of that.

This sort of misunderstanding (on the part of a seller) is the type of thing that makes us look unprofessional in the eyes of the public. Even though the agent doing the mail-out has done nothing wrong – the seller thinks they are breaking the rules because their agent didn’t prepare them for what to expect.

A Privacy Protected listing remains a Privacy Protected listing until such time as it is Sold, or Re-listed (if expired). Once the property is re-listed, it is no longer Privacy Protected, unless of course the seller signs a new Privacy Notice and Consent form with the next REALTOR®. If you are re-listing your own Privacy Protected listing you must have the seller sign a new Privacy Notice and Consent form. These forms live with the MLS® number.

Abusing Privacy Protection

There is one more important point I’d like to raise. Privacy Protected status is not meant to be a tool for you to limit competition by making it difficult for other agents to contact your seller in the future.

There appears to be an alarming trend of REALTORS® using “Privacy Protection” on every listing they take.

This agent’s goal may not be to benefit their client, but rather to benefit themselves by using Privacy Protection to make it difficult for other members to contact that seller in the future to ask for their business.

If this is the real purpose some REALTORS are using Privacy Protection, there are some serious ethical, agency, and possibly even competition questions that may come into play.

We need to honestly examine our motivation for suggesting to sellers that they ask for Privacy Protection. If the seller wants Privacy Protection, and there are legitimate reasons, it’s certainly their right to ask for it. But, if it’s simply to create obstacles for other members, that’s another matter.

Suggesting Privacy Protection for your own benefit could conflict with your fiduciary duty of loyalty and putting your clients interests ahead of your own.

Ethics: it’s not just about appearance

If you think of the words of the REALTOR® Code, “treat others as you would want to be treated”, conduct your business with “absolute honesty and integrity”, and “cooperation with and fairness to all”, then you understand the concern on another level – that of ethics. Professionals play fair, they don’t stack the deck. They play hard, they play to win, but they play by the rules.

Brokers, if you see this happening in your office, I hope you’ll take that agent aside and have a chat about it. I know that’s easier said than done, but it’s your house and it’s up to you to set the bar where you want it to be. We all need to get stricter with ourselves and each other about how this profession is practiced, who makes the grade, and what behaviour we tolerate among our peers. That’s how we raise the bar on Professionalism. It’s called self-regulation and it has a lot to do with ethics.

The Rules of Cooperation, Rule 6.06 states:

“No Member shall use MLS® listing information for the purpose of communicating with a seller of an MLS® listing to determine whether the seller requires additional real estate services when that seller has expressly opted-out of their personal information being used for this purpose.”

This rule is meant to honor the legitimate wishes of a seller who does not want their personal information in MLS® Systems data used by other agents to contact them offering additional real estate services. Usually this is so they will not be inundated with solicitation, if their listing expires.

The Privacy Notice and Consent form should be reviewed carefully, with a thorough explanation provided to your client. It contains four options regarding the optional use of private information that the seller can choose to opt out of, if they choose. And remember, if they tick or initial the opt-out box, you can’t do what that clause allows for:

2a) The REALTOR® to whom you are giving this consent (or their brokerage) may communicate with you in the future to determine whether you require additional real estate services.

  • This is your permission to keep in touch with this client. If the client ticks the 2a opt out box that means you, their agent, cannot communicate with them about providing additional real estate services.

2b) The REALTOR® to whom you are giving this consent (or their brokerage) may communicate with you to provide information about other products or services that may interest you.

  • This is your permission to contact this client about providing other products and services. If the client opts out of 2b that means you, their agent, cannot communicate with them to provide information about other products or services.

2c) Other REALTORS® may communicate with you to determine if you require additional real estate services.

  • If the client opts out of 2c this will prevent other agents from using the MLS® data to contact them about providing additional real estate services.

2d) The boards, and other REALTORS® or their brokerage (and survey firms on their behalf) may communicate with you to participate in surveys.

  • If the client opts out of 2d this prevents the boards, and other REALTORS® or their brokerage (including survey firms on their behalf) from contacting them to do surveys.

Generally, a client that does not want to be solicited will only opt out of 2c and maybe 2d.

Full transparency

I want readers to know I borrowed liberally for this piece from previous articles written by Kim Spencer, The Ethics Guy®, with the Real Estate Board of Greater Vancouver. Kim has been the Professional Standards/Ethics Manager at REBGV for well over a dozen years and has written countless articles and educational courses over that time. Kim has been a leader and mentor to all of us in Professional Standards throughout the Province and beyond. Thanks Kim!