For the first time, new rules under the Illinois Real Estate License Law of 2000 contain provisions about Internet advertising.
by Steve Bochenek, IR Legal Counsel
The Real Estate License Act of 2000 contains several key provisions dealing with advertising. The first of these is Section 10-30. Section 10-30(a) contains the basic provision that advertising not be “fraudulent, deceptive, inherently misleading, or . . . misleading in practice”. This is the basic underlying principal of the License Law with advertising. Similarly, Section 20-20(h)(4) indicates it is a violation of the License Law to engage in “any misleading or untruthful advertising”.
Another pertinent provision of the License Law is Section 20-20(h)(17) which provides in pertinent part that “advertising by any means that any property is for sale or for rent without the written consent of the owner or his or her authorized agent” would be a violation of the License Law. These statutory provisions must be adhered to by licensees when advertising whatever the media may be.
The Office of Banks and Real Estate (“OBRE”) promulgated emergency rules (“Rules”) effective January 1, 2000. Following a 45-day comment period, permanent rules will be established. [Editor’s note: This article was written during the comment period, based upon the interim rules. Members are encouraged to visit www.illinoisrealtor.org for a complete list of the finalized rules.]
Section 1450.140 of the Rules contains certain basic statements concerning advertising. Key among the provisions of the Section are provisions indicating certain activities will or will not be considered as advertising by OBRE.
Section 1450.140(b) provides listing information available on a licensee’s Web site but behind a firewall or similar device requiring a password or registration will not be considered as advertising for the purposes of Sections 1450.140 and 1450.145 of the Rules. The importance of this provision is that any listing information behind such a protective device will not have to meet the advertising guidelines set forth in these two sections dealing with Internet advertising. Although not stated, the reverse side of Section 1450. 140(b) is that if the listing information appears in front of the firewall or other protective device, the listing information will have to meet the Internet advertising provisions.
On the other hand, Section 1450. 140(c) provides unsolicited marketing of a licensee’s services and farming or prospecting will be considered as advertising. Thus, these activities, when using the Internet, will have to meet the Internet advertising guidelines of Section 1450.140 and 1450.145. The question we now need to review is what are those Internet advertising guidelines.
Points to Remember
Here are a few points and definitions you need to remember concerning Internet advertising.
For more complete information, please review the complete and finalized rules in the governmental affairs section.
Firewall exemption: Any information located behind a firewall or in a password protected area is not considered advertising under the Rules. (Section 1450.140(b)) Such information will not have to meet the advertising guidelines set forth in the Rules dealing with Internet advertising.
Scraping is prohibited under Section 1450.145(h). Scraping is defined as: “using or altering existing listing information or keywords copied from one Internet site and posted or displayed for the benefit of the general public in front of a firewall at another site without written or electronic authorization and disclosure of ownership”. (Section 1450. 145(a))
Frame: This refers to that portion of the Web page that does not change when the user links to a different site or moves to different pages.
Page: Each html document. This can include several screens of information that are viewed by scrolling down to the end of the document.
Deceptive advertising
Section 1450.145 deals directly with Internet advertising. Section 1450. 140(a) deals more generally with deceptive and misleading advertising but in a manner impacting Internet advertising. Section 1450.140(a) provides two examples of what will be considered by OBRE as deceptive and misleading advertising. The first example is advertising the listing of a sponsoring broker other than your own sponsoring broker. Section 1450.140(a)(1) indicates in order to advertise another sponsoring broker’s listings that you must have the permission of and identify the sponsoring broker. However, the licensee should remember placing listing information behind a Web site’s firewall or similar protective device will not be considered as advertising under Section 1450.140(b).
The second example of deceptive and misleading advertising is contained in Section 1450.140(a)(2). The provision requires removal of advertising within a reasonable time after the closing of a sale or termination of a listing agreement. In connection with Internet Web sites this would seemingly require a licensee to periodically update their Web site to remove “for sale” references to listings which have ended or properties on which closing have occurred. Failure to do so would result in deceptive or misleading advertising under this section and subject a licensee to disciplinary action by OBRE.
Learn these terms
Section 1450.145 specifically deals with Internet advertising issues. Subparagraph (a) provides definitions for several terms such as “page”, “frame” and “scraping”. These definitions need to be reviewed by the licensee in order to fully understand the Internet advertising rules of this section. For example, the term “page” may include a series of screens so long as the material is all part of one html document.
In addition, subparagraph (a) indicates what is considered as the Internet marketing of real property or real estate brokerage services. The definition of “scraping” deserves some particular attention.
“Scraping” is defined as “using or altering existing listing information or keywords copied from one Internet site and posted or displayed for the benefit of the general public in front of a firewall at another site without written or electronic authorization and disclosure of ownership”. In analyzing this definition it becomes clear that the Rules are talking about the posting of listing information from one Web site to another Web site without authorization and disclosure of the ownership of that listing information.
However, there is one exception. If the listing information is posted behind a firewall or similar password protected device, then the posting of that information can be done without specific authorization and without disclosure of the owner of the listing information since it is not considered scraping. Scraping information from another site is prohibited by Section 1450.145(h).
Subparagraphs (b), (c), (d) and (e) of Section 1450.145 detail the type of information which must be included by either the sponsoring broker or a licensee on their respective Web sites when advertising real estate or brokerage services. For example, on the sponsoring broker’s Web site marketing properties there must be included the city or geographic area in which the property is located, the company name as licensed by OBRE and the jurisdiction in which the sponsoring broker is licensed if different from where the property is located. This information does not have to be included on each page if the information is included on the frame for the page. Each of these subparagraphs need to be reviewed in order to determine the information needed on your site.
Section 1450.145(f) and (g) deal with use of e-mail or other electronic communications by a sponsoring broker or other licensee. These subparagraphs focus on adequate disclosure to a consumer of the person or entity communicating with the consumer. The initial e-mail or other e-correspondence from a sponsoring broker or licensee to a member of the public must identify the sponsoring broker or licensee and where they are located. Additional e-correspondence need not include the information if in response to a communication from the consumer and the information has previously been provided. Basically, this type of requirement is comparable to including identifying information on paper communications.
Hotlinks
Other subparagraphs of Section 1450.145 deal with links to other sites and periodically reviewing and updating information on your site. It is very important all licensees review Sections 1450.140 and 1450.145 of the Rules. These sections provide the most detailed instruction to date from OBRE on Internet advertising by licensees.
Illinois REALTOR® magazine, March 2000
