The Dos and Don'ts of Social Media Advertising

The Dos and Don'ts of Social Media Advertising

No matter how you feel about social media in your personal life, many licensees now view advertising on social media as a necessary part of the job. Although Alabama’s advertising laws are the same for social media as for other forms of advertisements, applying those requirements to social media posts can be somewhat tricky at first. We’ve broken down each component of the law related to real estate advertisements below. Read on for a refresher on Alabama license law as it applies to advertisements, as well as some practical tips for how to keep your social media posts compliant.


What counts as an advertisement?

Under Alabama license law, the term “advertisement” encompasses any public representation of a real estate company and/or its services. This means that although a picture or video that you post on social media discussing a given topic may not, at first glance, appear to be an advertisement, you should consider anything that you post on social media related to your business to be an advertisement for license law purposes.


Be straightforward.

Alabama license law specifically prohibits advertisements which are “likely to deceive the public” or “tend to create a misleading impression” Alabama Code Section 34-27-36(a)(6). Since this prohibition is broad, alleged violations of this rule can be interpreted broadly. Licensees should be careful to never use unclear, tricky, or vague language in advertisements. A common rule of thumb regarding advertisements that will be widely viewed is to write them at approximately an 8th grade reading level to maximize readers’ understanding.


Part 1: Who does this licensee work for?

Alabama Code Section 34-27-36(a)(15) requires that advertisements prominently identify the trade name of either the company or the qualifying broker for whom the licensee making the advertisement works. The Alabama Real Estate Commission (“AREC”) enforces both aspects of this requirement, so we will break it down:

First, the company or qualifying broker’s name as it appears on their real estate license must appear on the advertisement. We will use a fictitious licensee, Ryan Land, for illustrative purposes. Ryan works for a company called XYZ Realty, Inc, and his qualifying broker’s name is Robert Broker. If Ryan chooses to list his company name to fulfill the requirements of Alabama Code Section 34-27-36(a)(15), he cannot simply list his company as being “XYZ” or even “XYZ Realty,” since neither of those are the full trade name of the company as it is licensed. He must include the full name “XYZ Realty, Inc.” If Ryan instead chose to list his qualifying broker’s name, he would need to include “Robert Broker,” not “Mr. Broker” or “Bob Broker.”

Note: It is entirely your choice whether you list your company name or qualifying broker’s name. However, if your advertisement is space-limited, listing the full company name may be your best option, since it fulfills both this requirement and the next requirement below.

Second, the law requires that regardless of whether you list the company name or the qualifying broker’s name, that name must be listed prominently. The law does not clarify exactly what this means, but a common definition of prominently is “so as to catch the attention; conspicuously.” If Ryan’s social media post was text-only, he would need to ensure that the company or qualifying broker’s name was both noticeable and readable. He would do this by considering the placement of the information within his post, the font and text size (if he can control those factors), and overall readability of the post. If he were posting a picture or video, he would need to make sure that the information was written large enough and displayed for long enough to be easily readable, even if the reader simply scrolls past the post.


Part 2: Where did this ad come from?

Alabama Code Section 34-27-36(a)(6) requires that any advertisement also “identify the person causing the advertisement to be placed as a licensed broker or salesperson.” In other words, any person who views the advertisement should be able to easily identify that it is an advertisement for brokerage services.

There are a couple of ways to comply with this requirement. One way is to list the licensee’s company name, as licensed. As noted above, this option fulfills the requirements of both Alabama Code Sections 34-27-36(a)(15) and 34-27-36(a)(6). Another option is for the licensee to identify him/herself as being a real estate licensee within the advertisement. In our fictitious example, Ryan Land would need to list both his name and his status as a licensed real estate salesperson in Alabama.

You may choose to list both pieces of information on your advertisements but should be mindful of readability and the requirement that the company name/qualifying broker's name be displayed “prominently.”


Part 3: Where do I put this information?

It can be tricky to determine where in your social media post to put all the required information, since social media posts can have multiple components (e.g., a picture, a video, and a caption). In practice, depending on the type of post, you may need to repeat required information multiple times throughout one post to ensure that your post is license-law compliant. For example, if the post is a video, several viewing options are available - viewers can watch the video and read the caption, only watch the video, watch the video without sound, watch part of the video, or only read the caption. So, the best practice is to include the required information in each component of your social media post (the caption, the text, the photo, the video, etc.). The goal is that a reader would be able to see all the required information even if they do not view every component of your post.

There is one more special consideration for social media specifically: scrolling. Keep in mind that social media posts don’t just show up on your page, they also appear on a main “homepage” that users can scroll through. When users scroll through posts, they are not necessarily opening the full post and may see only a thumbnail version of parts of the post. You should ensure that your social media advertisements are compliant with license law even if someone simply scrolls past them. This means that you will need to preview the post as it looks as a stand-alone post and as it looks when included on the social media service’s “homepage.” In other words, each post and click-through option of an advertisement must include the required information.

Important Note: Qualified Broker Liability

It is important to note that Alabama license law also imposes a duty on qualifying brokers to ensure that their associate brokers’ and salespeople’s advertisements are compliant. Not only does Alabama Code Section 34-27-36(a)(15) make it a violation for a salesperson or associate broker to fail to identify their company or qualifying broker, but it is also a violation for a qualifying broker to allow such an advertisement to be posted. The Alabama Real Estate Commission regularly enforces this rule and in the recent past has found several qualifying brokers in violation due to their agents’ incompliant post(s). As such, the best practice is to require that all salespeople and associate brokers seek their qualifying broker's approval of advertisements, including social media posts, before making them live, or for qualifying brokers to review posts for compliance. While this may seem daunting, it is the role of the qualifying broker. To ease that burden, a best practice is to have an office policy regarding when and how social media advertisements will be reviewed and approved by the qualifying broker.

Reminder: Code of Ethics and Fair Housing

As a reminder, license law is not the only consideration when posting on social media. You should always be mindful that nothing you post can be construed as running afoul of fair housing laws. Additionally, the REALTOR® Code of Ethics prohibits use of “harassing speech, hate speech, epithets, or slurs based on” one of the 9 protected classes (race, color, national origin, disability, religion, sex, familial status, sexual orientation, and gender identity). This prohibition applies to any online activity, not just online activity related to your business. If you are an AAR member and have questions about how Fair Housing laws and the Code of Ethics apply to advertisements, please contact the Legal Helpdesk.


To Sum It Up:

Aar Dos&Donts Social 3
Aar Dos&Donts Social 2 (1)