Is Your Social Media Platform Breaking the Law? 

The world no longer relies solely on print to convey messages and information, and the once-exotic website is now oh-so-last century as many professionals text, tweet, IM, jabber or blog just about every waking moment.

While some in the multifamily housing industry are still dragging their collective heels in participating in this modern technological world, many are embracing it with enthusiasm. Marketing innovators envision communicating with rental prospects and residents alike through social media.

But keep in mind that while fire is used to keep us warm, it can also be used to destroy; knives are valuable implements, but can be used as weapons; and social media is a great tool, but it can also be harmful if not used wisely.

While this article attempts to help industry professionals avoid the possible pitfalls of social media, realize that the courts will have a fine time trying to apply long-held legal principles to the fast and ever-changing world of technology and communications. Apartment professionals need not avoid the use of social media when marketing their communities and when communicating with their residents, but they do need to keep their eyes and minds open.

Tall, Blond and Beautiful
Among the first things to consider are basic or “static” marketing websites, where all content is self-controlled. This website is a form of advertising, and as a practical matter it is no different than any form of traditional advertising, so the same rules apply. Self-promotion must be true, or it is false advertising. What is written about others must be true, or it is libel. Consumer laws must be followed and trademarks and copyrights honored.

Do not forget fair housing considerations. The purpose of a website is to advertise the community, and all content (both words and pictures) must be fair-housing compliant. Quite simply, that means that a “reasonable person” looking at your website should not see anything that would suggest “any preference, limitation or discrimination because of race, color, religion, sex, disability, familial status or national origin.”

This means that the words that are used, the directions that are given, the symbols that are displayed and the pictures that are shown cannot indicate that type of preference, limitation or discrimination. The days of using a Barbie look-alike in advertising should have been long over. She is tall, blond, beautiful and white, but that is not the case for everyone. White-only advertising is a costly fair housing sin. Finally, remember the Equal Housing Opportunity logo. It should be used on all advertising, including websites.

The next type of website to consider is one where others are able to post information, such as blogs open to prospective or existing residents. Is the community liable for what is posted? The answer is, “It depends.” It depends on how much control is exerted over those external postings. In one case, Craigslist.com was found not to be liable for what others posted on its website (including fair housing violations). The ruling was made because Craigslist didn’t review or control the postings; they simply allowed them to be placed. If someone made an illegal post and Craigslist found out, the site pulled it immediately.

Under the Community Decency Act (CDA) of 1996, Craigslist is an Internet Service Provider and thus immune from liability for what others post. Know, however, that the National Fair Housing Alliance (NFHA) wants to see the CDA amended to say that even if a site has no review or control, it should be held liable for fair housing violations. Ouch! While NFHA has not said whether they will try to make such a change happen, this is scary for apartment managers and owners working online.

But there was a different result in the Roommates.com case. In that instance, postings for the type of roommate wanted (or not wanted, as might be the case) came from an online form that was provided. So Roommates.com was in essence controlling the content posts (with their fair housing repercussions), and thus they did not have protection under the Community Decency Act. So it’s all about control. The more the message is controlled, the more likely the accountability.

Nine Things to Consider
Is social media a form of advertising? Again, the answer is, “It depends.” It depends on what a judge or jury might say.

Multifamily housing professionals who are using a fan page on Facebook or who are sending “tweets” would probably admit that the ultimate goal is effective marketing of their community or company. That sure sounds like advertising.

These thoughts raise many issues and questions, but don’t allow for clear answers. Social media can be a cost-effective and enormously successful form of advertising, but apartment professionals must know what questions to ask before taking the leap into social media. Following are nine topics to consider:

1. You don’t need an active voice in the world of social media for people to be talking about you (feeling paranoid yet?). When people post comments—good or bad—will you respond, and if so, how? Will you apologize for a mistake you made? Will you try to correct what you believe is inaccurate?
2. Who will be in charge of all of this responding, apologizing and rebutting? Who will be your voice?
3. This all can be time consuming. Will you be “known as a company that listens and participates” as described by J.C. Hart’s Vice President and Director of Marketing Mark Juleen in the October 2009 units magazine article, “Look Who’s Talking”? Or will the time investment push you or your staff “over the edge,” which is what concerns apartment consultant Lori Snider, interviewed in that same article? How much time will be committed to monitoring and responding?
4. Where will your voice be heard? On your own website or blog? Through posts on the websites and blogs of others.
5. Since you must be concerned about fair housing issues, what will you do if someone writes something inappropriate about their neighbors (that’s right—your residents will be posting too!) or your prospects?
6. What about the “over-the-top compliment”—could that be construed as sexual harassment?
7. Who do you have blogging or tweeting or posting to your Facebook pages? Are you giving them something (perhaps discounted rent, favorable lease terms or even an actual payment) to do so? Are they posting favorable comments? If so, that is an endorsement or a testimonial, and they must disclose that they are getting consideration for saying those nice things. In fact, you need to direct the person that they cannot make unsubstantiated claims about your community and that they must disclose any material connection between the blog and you (such as that rent discount). You should also monitor those solicited blog posts to assure compliance, and your internal rules should either prohibit your employees from posting any reviews of your community or doing so without revealing their connection to you.
8. The previous point raises another question: When is an employee “yours”—with all the attendant responsibility on your part for their actions? When are they “on the clock” and when are they on their “own time?” The number of people with personal blogs and Facebook, Twitter or YouTube accounts increases daily and it’s likely your employees are in the blogosphere even if your business isn’t. How will you manage the constant stream of comments?
9. That brings you to training. Will you train your employees in the proper use of your social media? Will you give them advice on the proper use of social media in their personal lives? Just as the purely innocent remark can get us into trouble, so can the well-intentioned post or comment bring about unexpected and unpleasant consequences.

This article provides far more questions than answers. The world of social media is a world that is quickly evolving. Become educated on such topics and remain observant of how the community operates. This will help communities spend more time serving their residents instead of fighting legal battles.

Doug Chasick is Senior VP, Multifamly Professional Services with CallSource. Nadeen Green is Senior Counsel with For Rent Media Solutions. Information contained in this article is not to be considered legal advice, and the authors and their respective companies strongly recommend that apartment professionals consult with their respective counsel about any questions or problems they have. The authors can be reached at dchasick@callsource.com and Nadeen.Green@ForRent.com.

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