Question: I represent the Seller. Right after escrow closed, the Seller requested that I remove the virtual tour and other photographs of his home that had been posted on the MLS. He made that request because the Buyers were demanding that all images of their home be taken off the MLS.
I contacted the MLS to see what could be done and I was told that legally the MLS could not remove the photographs. Is that true? I thought the various MLS need to honor a client’s requests. If there is a law that prohibits the MLS from removing videos and photographs, what should I tell the Seller? Is the Seller obligated to do as the Buyer requests? What should the Seller tell the Buyer?
Answer: Yes, there is a law that prohibits the MLS from honoring the Buyer’s request. The Seller is not legally responsible for complying with the Buyer’s request. None of the standard Purchase Agreement forms contain a provision obligating the Seller or the Brokers to remove images or information from the MLS when requested to do so by the Buyer.
I. California Civil Code Section 1088(c) provides:
“A multiple listing service shall retain and make accessible on its computer system, if any, all listing and other information placed in the multiple listing service by an agent or appraiser for no less than three years from the date the listing was placed in the multiple listing service.”
Brokers, Sellers and Buyers will not have a legal right to compel the MLS to remove anything from the MLS. Barring an exceptional matter like a copyright or listing agreement invalidity issue, no one could legally require that photos be expunged from the MLS database.
Although some MLS have apparently taken the position that this law only applies to transactions that have actually closed, there is nothing in this statutory provision which distinguishes between a listing on a closed sale as compared to a pending transaction or an expired listing. Other MLS are very strict and take the position that once images are uploaded into the MLS, those images cannot be removed for a period of three (3) years from the date of the listing whether or not escrow has closed.
Not all MLS follow these legal requirements; some MLS have been known to make exceptions. If a client wants the photographs removed from the MLS, there is no harm in making the request to the MLS but the clients should be warned, in advance of making such a request, that it may not be legally feasible. Everyone should also keep in mind that once photographs and videos are uploaded into the MLS, those images are in the public domain and neither the Sellers nor the Brokers may be able to control that material.
II. California Consumer Privacy Act:
As warned in the CAR California Consumer Privacy Act Advisory (“CCPA”) and in standard Residential Listing Agreement forms, data and images uploaded into the MLS are displayed on other internet sites. For example, Paragraph 14B of the CAR Residential Listing Agreement e (“RLA”) warns that “…once images are placed on the internet neither Broker nor Seller has control over who can view such images … or how long such images may remain on the internet.”
Some consumer requests to take down photographs may be honored by third-party portals receiving MLS data feeds (e.g., Zillow and Realtor.com). These businesses may be covered under the California Consumer Privacy Act (“CCPA”). Consumers have certain rights regarding their personal information with respect to these third-party businesses and the CCPA defines personal information very broadly.
Generally speaking, a consumer will need to make their own request directly to these third-party sites to take down photographs and videos. A Buyer’s right to make the request would be based upon the argument that photographs taken of the Seller’s property before Close of Escrow could now constitute or contain the Buyer’s personal (and non-public) information depending upon what is captured and revealed by the images, such as the Property address.
Consumers who are interested in having their personal information removed from a third-party website should look for a “Do Not Sell My Personal Information” clickable feature to make the request. It will probably be found near the clickable “Terms of Use” link which is often found at the bottom of the site’s homepage.
PRACTICE TIPS:
- If a Broker’s Client wants their images removed from the MLS, the Client should be told the truth:
“Although there is no harm in making the request to the MLS, it may not be legally possible to remove those images from the MLS for a period of three (3) years. Even if the MLS will agree to remove the images, everything that is uploaded into the MLS is distributed to internet sites which are not subject to control by Brokers. As a consumer, you may be able to personally request that those sites remove your personal information under the California Consumer Privacy Act.”
- Buyers who demand that Sellers remove images from the MLS should also be told the truth:
“The MLS may not allow material uploaded into the MLS to be removed for a period of three (3) years. Sellers and Brokers have no control over the MLS and the Purchase Agreement does not obligate Sellers or Brokers to remove any material that is in the MLS. There is no harm in you making a request to the MLS to remove the images. Even if the MLS will agree to remove the images, everything that is uploaded into the MLS is distributed to internet sites which are not subject to control by Sellers and Brokers. As a consumer, you may be able to personally request that those sites remove your personal information under the California Consumer Privacy Act.”
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