A couple of weeks ago, Chadwick Newcombe from Kahane Law Office spoke at our Cocktails & Compliance event about the importance of understanding privacy limits during showings, when advertising, and in real estate transactions, particularly about the Personal Information Protection Act (PIPA). 

Below are some key takeaways from Chad’s session:

General PIPA overview

PIPA governs the collection, use, and disclosure of personal information by organizations for commercial purposes. It does not apply to individuals acting in a personal or domestic capacity. The collection of personal information must be reasonable and generally requires the individual’s consent. Consent can be obtained in writing, orally, or implied if an individual voluntarily provides information for a specific purpose. Although consent can be obtained in various ways, it is strongly recommended to secure written consent. PIPA also allows individuals to withdraw or modify their consent at any time.

Privacy considerations during showings

Real estate agents and brokerages are subject to PIPA, while private individuals (such as sellers or buyers) are not unless they act on a corporation's behalf. Best practices include providing advance notice to potential buyers or viewers that they may be recorded and informing sellers and buyers of their rights regarding these recordings.

Privacy rights in advertising

When advertising properties, agents must ensure they have consent to use personal information, including images and recordings of the property. Unauthorized use of individuals’ likenesses or other personal information for commercial purposes is prohibited under common law, so obtaining consent in advance—preferably in writing—is essential.

Privacy at the brokerage

REALTORS® have limited privacy rights when using brokerage resources like email accounts and office computers. Brokerages can access and review activities conducted on their networks or equipment, so it’s advisable to use work resources for professional purposes only.

Reducing risk through representation agreements

AREA’s Forms and Practice Committee has been working to establish additional provisions in the AREA representation agreements to give the Seller or Buyer, as it may be, more clarity on what to expect regarding audio and image recording.

Seller Representation Agreement (DA)

13. AUDIO AND VIDEO RECORDINGS AND PHOTOGRAPHY

13.1 You consent to showing the property to prospective buyers, including virtual showings using photography or videography, and acknowledge that your personal or confidential information may be seen by prospective buyers, their representatives, service providers, and others as may be required to attend the property by the prospective buyers.

13.2 You release and hold us and our brokerage representatives harmless from all legal liability due to any alleged breaches of privacy arising from showings of the property, including virtual showings using photography or videography. You acknowledge it is unlawful to record conversations of any persons attending your property without their written consent and to have active cameras located in or on your property where privacy would be reasonably expected.

Buyer Representation Agreement (DA)

11. AUDIO AND VIDEO RECORDINGS AND PHOTOGRAPHY

11.1 You acknowledge that properties you choose to view may be equipped with active cameras or other live recording devices and that we and our brokerage representatives may be unaware of the existence of such devices on the property.

11.2 You release and hold us and our brokerage representatives harmless from all legal claims and liability due to any alleged breaches of privacy arising from the seller recording audio or video of you while in or on their property.

Seller and Customer Acknowledgement & Fee Agreement

7. AUDIO AND VIDEO RECORDINGS AND PHOTOGRAPHY

7.1 You consent to showing the property, including virtual showings using photography or videography, and acknowledge that your personal or confidential information may be seen by prospective buyers, their representatives, service providers, and others as may be required to attend the property by the prospective buyers.

7.2 You release and hold us and our brokerage representatives harmless from all legal liability due to any alleged breaches of privacy arising from showings of the property, including virtual showings using photography or videography.

7.3 You acknowledge it is unlawful to record conversations of any persons attending your property without their written consent and to have active cameras located in or on your property where privacy would be reasonably expected.

Additional revisions to these and other AREA forms were approved and released on Sept. 4, 2024. Members should have received an email from AREA that outlines adjustments, and we encourage all members to re-read the agreements frequently used in their practice to familiarize themselves with any updates.