August 9th - 2005

Broker breaches privacy law

The first privacy decision involving a real estate issue has been rendered, and the Privacy Commissioner of Canada has reinforced the requirement to obtain consent before disclosing anyone’s personal information – be it client or competitor.

The first privacy decision involving a real estate issue has been rendered, and the Privacy Commissioner of Canada has reinforced the requirement to obtain consent before disclosing anyone’s personal information – be it client or competitor.

The presiding Assistant Commissioner found that a broker had used and disclosed personal information about sales representatives of other firms without their consent, and therefore in breach of the federal privacy law (PIPEDA).

The broker had published an advertisement that ranked the top five salespeople in an area, with names and the number of houses each had sold. The ad was paid for by a salesperson at the broker’s firm, who was ranked number one. The ad showed the sources of information to be from a real estate board’s MLS and a third-party organization.

Two REALTORS who ranked third and fifth on the list complained that to the Privacy Commissioner that they had not consented to the disclosure of this personal information.

The broker’s ad ran into trouble because of the way the MLS material was used. Though all of the information was available on the MLS to its authorized users, the system could not rank salespersons’ listings and sales or perform other comparative analyses.

The analyses were purchased by the broker from the third-party organization. The real estate board had no contractual relationship with the third- party organization. The board also disabled the salesperson name in the searchable data field of its MLS system in early 2004.

The Assistant Commissioner determined that there was no express consent given to the disclosure of this personal information. In deciding whether the REALTORS had given implied consent by virtue of the information on the MLS, the Assistant Commissioner concluded that “The real estate board members would not have reasonably expected the information they consented to provide for listings to be used and disclosed in such a manner….”

To learn more, a detailed summary is posted on the members’ MyOREA site. Select Privacy Compliance under the Legal tab, and choose “Privacy Decision– Publishing Comparative Info” from the “Select an article” menu. Also, the official decision summary is available on the Privacy Commissioner’ website at: http://www.privcom.gc.ca/cf-dc/2005/303_20050531_e.asp

Mother, May I…?
Just like the game from our childhood, real estate professionals must remember that before taking the next step, they have to get an individual's consent when they collect, use or disclose that individual's personal information. Further, personal information can only be collected for a stated purpose and information collected can only be used for the stated purpose. To use the information collected for another purpose, further consent has to be obtained. Otherwise REALTORS may run afoul of the privacy law.

To help sort through the issues, the OREA Legal Resource Committee will be launching a new e-newsletter dealing with privacy compliance for REALTORS. The newsletter will contain summaries of relevant decisions by the Privacy Commissioner, privacy compliance tips, privacy FAQs and other resource materials to assist REALTORS with their privacy obligations.

Members can subscribe to the free e-newsletter service by logging on to MyOREA - Legal - Privacy Compliance and click on the subscription form link provided on that page. 

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For more information contact

Ontario Real Estate Association

Jean-Adrien Delicano

Senior Manager, Media Relations

JeanAdrienD@orea.com

416-445-9910 ext. 246

Ontario Real Estate Association
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