Q. I have listed a property and the seller has outfitted his home with webcams. He says it is to keep an eye on the property, but I think it is to listen to conversations and see who is viewing the house. Must I disclose to potential buyers and their agents that they are being videotaped?
A. Questions regarding the use of webcams or “nanny cams” are becoming more prevalent throughout the nation. Increasingly, sellers worry about safety in their home and wish to monitor showings with these devices. Others may view the use of these cameras as a tactic to give them an edge on negotiations, as they will get a sense of the buyer’s view of the home. If your seller wishes to use a webcam, it is important to have a discussion regarding the legality of these devices when taking the listing.
If the webcam has a feature that streams or records audio, the seller must obtain consent from all of the individuals being recorded in advance of the recording. Massachusetts has some of the strictest wiretapping laws in the country; it is one of the few states that requires that all parties involved to give consent. Therefore, it is illegal to record conversations of prospective buyers (and their agents) without their permission.
If the webcam does not stream or record audio, or the seller has disabled this feature, the law is not as explicit. Neither Massachusetts nor federal wiretapping laws prohibit video surveillance or require consent from the parties. It is strongly encouraged, however, that if a seller is using a webcam it should be clearly disclosed to all prospective purchasers and their agents. If you represent a buyer, you should consider asking listing agents if there is a webcam in use at the showing.
Q: I downloaded an app that allows me to live-stream video from my mobile device. I plan to use it in my marketing packages. Are there any legal issues that I should consider?
A: Just as with Nanny Cams that sellers are installing in their homes, there are also legal implications to consider when using live-streaming video apps. Since you plan to use the video for commercial purposes, the standard of “right to publicity” applies. Therefore, if you record any video for commercial purposes, even if there is no audio, you are required to obtain the permission of those shown in the video before it can be used for commercial purposes, whether it is used for a social media post or a digital ad.
Those using live-streaming apps should also be mindful of potential copyright infringement. Most of the streaming apps prohibit using the service to record copyrighted content. If you include copyrighted material in your video, you run the risk of having your account deleted and could face a potential lawsuit.
You also want to remember that all advertisements are required to include the name of your brokerage. Massachusetts Regulation 254 CMR 3.00(9) states that, “A broker shall not advertise in any way that is false or misleading” and “all advertisements shall include the name of the real estate broker.” Further, the REALTOR® Code of Ethics Standard of Practice 12-5 goes on to say that, “REALTORS® shall not advertise nor permit any person employed by or affiliated with them to advertise real estate services or listed property in any medium (e.g., electronically, print, radio, television, etc.) without disclosing the name of that REALTOR®’s firm in a reasonable and readily apparent manner.” In all of your advertisements, you want to be sure to make it clear that you are a real estate professional and to also include the name of your firm.
Above are Questions and Answers from the Massachusetts Legal Hotline attorneys, Michael McDonagh, Ashley Stolba, MAR Associate Counsel, and Justin Davidson.