Same Legal Rules Governing Traditional Forms of Advertising Apply to Social Media and Online Advertising
In Kansas, the same legal rules governing traditional forms of real estate advertising (i.e., brochures, handouts, magazines, newspapers, etc.) apply equally to any advertising conducted through social media applications (such as Facebook and Twitter) or other online, internet-based publications. In short, there are no special exceptions under the Kansas Real Estate Brokers’ and Salespersons’ License Act (KREBSLA) that would differentiate social media and online advertising from other traditional forms of real estate advertising.
Unfortunately, the Kansas Real Estate Commission (KREC) has no statutory authority to waive any of the advertising requirements contained in Kansas statutes and regulations for advertising conducted solely through social media applications or other online, internet-based publications. As a result, any advertising conducted through social media applications (such as Facebook or Twitter) or other online, internet-based publications must conform to the same legal requirements as all other forms of advertising.
All Advertising in Any Medium Must Display the Name of Supervising Broker’s Business or Trade Name
The most common question on this issue is the requirement under K.S.A. 58-3086(b)(B) that all advertising conducted by a real estate licensee must “include the name of the supervising broker’s trade name or business name by prominently and conspicuously displaying or announcing the supervising broker’s trade name or business name in a readable and identifiable manner.” In plain English, this means that all advertising must include the business name of the brokerage in a prominent and readable location on all advertising.
This statute does not contain any distinctions between traditional forms of advertising (such as business cards or the newspaper) or advertising conducted through social media applications such as Facebook and Twitter. As a result, any advertising of a listing or the real estate services by a REALTOR® on Facebook, Twitter or any other social media application or internet-based publication must clearly display the name of the brokerage, even though this will take up a somewhat large amount of the available characters in the update.
Kansas Law Has a Higher Standard for Social Media Advertising than REALTOR® Code of Ethics
The National Association of REALTORS® has rules governing similar advertising requirements contained in the Code of Ethics. Standard of Practice 12-5 does allow REALTORS® to provide the required disclosures via a link in an electronic advertising. However, in Kansas you must follow the stricter requirements contained under Kansas law because state law always overrules the REALTOR® Code of Ethics whenever state law is more strict than the code.
Prominent and Conspicuous
On a final note, KAR and KREC have had ongoing discussions regarding the advertising requirements in KREBSLA and whether any amendments are needed to provide clarity to licensees. These discussions are motivated from a desire to ensure that the public is not confused into thinking either the individual salesperson or team is the brokerage firm. Possible changes include prohibiting certain words from being used in connection with an individual or team name. Also being considered is whether minimum space requirements for the supervising broker’s trade or business name should be added to the statute in order to provide objective measurements. Arguably, “prominently and conspicuously” are subjective terms that could have reasonable minds disagreeing over whether a particular advertising satisfies K.S.A. 58-3086(b)(B). KAR is developing recommendations and will provide feedback to KREC on this issue.
Need More Information?
If you have any questions about the advertising requirements discussed in this article, please contact Patrick Vogelsberg, KAR Vice President of Governmental Affairs at [email protected] or by phone at 785-267-3610 Ext. 2133.
