Obtaining Consent

The knowledge and consent of a customer are required for the collection, use, or disclosure of personal information except where inappropriate.

This third rule is the easy answer to all privacy questions. If you obtain the prior consent of the client to whatever you are planning to do, you will not have any complaint later. The secret is to obtain this consent in a positive manner, using pri- vacy not as a restriction on your business but as a marketing opportunity for your business.

We have seen that the most common form of consent in the real estate industry is now found in the listing agreement itself, whereby the client gives the listing salesperson consent to use whatever means possible to effect the sale of the prop- erty, including the ability to disclose personal information about the property to anyone who can assist in selling the property. A copy of the relevant listing language is disclosed below, found in section 11 of the Ontario Real Estate Association Listing Agreement, and has been adopted by most real estate boards in Canada:

The seller consents to the collection, use, and disclosure of per- sonal information by the Broker for the purpose of listing and marketing the Property including, but not limited to, listing and advertising the Property using any medium including the Internet; disclosing Property information to prospective buyers, brokers, salespersons, and others who may assist in the sale of the Property; such other use of the seller’s personal information as is consistent with listing and marketing of the Property. The Seller consents, if this is an MLS listing, to placement of the listing information and sales information by the Broker into the database of the appropriate

MLSsystem(s) and acknowledges that the MLSdatabase is the prop-

erty of the board(s) and can be licensed, resold, or otherwise dealt with by the board(s). The Seller further acknowledges that the board(s) may: distribute the information to any persons authorized to use such service which may include other brokers, government departments, appraisers, municipal organizations, and others; market the Property, at its option, in any medium, including elec- tronic media; compile, retain, and publish any statistics including historical MLSdata which may be used by licensed board members

to conduct comparative market analyses; and make such other use of the information as the board deems appropriate in connection with the listing, marketing, and selling of real estate.

The seller is thus agreeing to the salesperson’s conveyance of personal information to any other salesperson or other person for the purpose of selling the property. If the property is listed on mls, the seller authorizes the mls service to dis- close the information to any other party at its discretion, including other board members, government agencies, appraisers, and others. The seller further consents to subse- quent sales data being retained by the board and compiled and used by any other member for a comparative market analysis, as discussed under Principle 2.

The seller now understands the identified purpose of the disclosure of personal information — to sell his property — and he has given his consent by signing the listing agreement. If you want to use information associated with the sign-in sheet at an open house, you must obtain the customer’s con- sent on the document itself. It should be informed consent: Consumers must understand what they are consenting to. While there has been much debate as to how to obtain this consent, two methods have been deemed acceptable by the Privacy Commission: opt-in consent and opt-out consent.

• In opt-in consent, consumers must check off a box indicating that they agree to have their personal information disclosed for a particular purpose. In the open house sign-in sheet example, the clause would read as follows:

The undersigned consents to X using my personal information to contact me about this property and other similar properties.

The consumer would then check off a box beside the state- ment, agreeing to receive the information. This method is stronger proof that the person has consented.

• In an opt-out consent, unless the consumer checks off the box, he has agreed to accept the information. For example:

You agree that X may use your personal information to send you information about this property or similar properties. If you do not wish to receive this information, please check the attached box.

In this case, customers who have not checked the box are deemed to have consented to your sending the information.

What about the mailing lists that we have assembled over the years? Can we continue marketing to these clients, if we are not sure whether we have obtained their consent in the first place? There is also the concept of implied consent. If you can demon- strate that there is implied consent within the client relationship for you to send information, you can continue to do so. Therefore, if you have been using your mailing list in the past to send your clients cards, calendars, and marketing information, you can continue to do so, without any further consent. This is the concept of “grandfathering” that the legislation recognizes. However, if you intend to change the use of this information (sell or give it to a third party), the consent of each of your clients would be required. You are advised, as you market to clients or customers in the present “privacy age,” to include the following opt-out language in your marketing material:

We value your personal information. If you wish to be removed from our mailing list, or have any other questions about the use of per- sonal information, please contact us at. . . .

I am not suggesting that you insert this kind of language on your Christmas cards. However, you should include it when- ever you do a targeted mailing or e-mail marketing campaign. It would be difficult for any recipient to make a complaint when you have given them the means to stop receiving this kind of information.

As discussed under Principle 2, if you would like to send out cards advertising the fact that you have had a successful sale of a client’s property, the easiest way to do this is to obtain the client’s permission, using the opt-in or opt-out forms of consent. You should try to obtain this consent as soon as you get the listing agreement signed. It can be as simple as one sentence saying, “I agree that you may use my personal infor- mation to market the successful sale of my property.” By getting this consent in advance, you avoid any possibility of bothering the client later when you do in fact advertise how successful you were in selling the property.