Quick summary: No, you are not liable for listings that come to your site via an IDX feed.
You may have seen the story that started with a blog post on Active Rain from Jeff Launiere, a Realtor in Clearwater, Fla.
Distilled version: Like many Realtors, Jeff had an IDX feed coming into his website, with all the listings from his area.
We as agents have absolutely no control over the listings that are on our websites. The feed comes directly from the Multiple Listings Service (MLS) and you either show all listings, or none.
An agent might have 10 listings, 20 listings, 100 listings, or no listings of their own. Yet all show the same listings on their websites. If there are 13,000 listings in the Tampa area, then if you go to my website you will find all 13,000 listings. If you go to a company website [that participates in IDX], whether Coldwell Banker, Keller Williams, Remax, Charles Rutenberg Realty, Realtor.com, or any number of websites, you will see the same 13,000 listings in the Tampa area.
One of those listings — not Jeff’s — appeared to violate the Fair Housing Act, by stating, “Adults Only, No Children Under 16 Allowed.” A private citizen saw the listing on Jeff’s site (remember — he or she would have seen the same listing on dozens of other sites) and filed a lawsuit.
As Jeff explained:
The lawsuit claims I am the listing agent. I am not, but obviously the Independent Fair Housing Tester believed because all 13,000 plus listings are on my website it must mean they are my listings.
Let’s cut to the chase. Although there were some confusing and scary moments for Jeff, the lawsuit against him was dismissed.
As well it should have been. The law says so.
NAR general counsel Laurie Janik explained:
It is NOT true that an agent who posts IDX listings on her website is liable for the content in those listings. Even though the Fair Housing Act makes it illegal to publish a discriminatory ad, the Communications Decency Act of 1996 provides a defense for those who are only posting content created by others.
The CDA is something I’m quite familiar with; I was covering it at the time it was first passed. Section 203 says, essentially — with some specific caveats — that providers and users of “interactive computer services” who publish information provided by others cannot be held liable for that information.
In Jeff’s case, he fits that description perfectly: He was a provider of an interactive computer service (his site), that published information provided by someone else (the originating broker via the IDX feed).
(There are some ways you can end up liable for third-party information, usually because you edit it, add a headline, etc. Talk to your firm’s attorney about this.)
And in case you’re wondering, Janik says the listing agent who DID create that listing has been dismissed, “but the case continues against the broker because the agent who wrote the discriminatory comments is licensed with this broker.”