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Is real estate gossip a First Amendment right? What if it is online?

Real estate gossip on and offline

Gossip predates the very concept of real estate, real estate gossip predates the internet, and real estate gossip online predates social networks. Watercooler talk is common place in any industry, but especially a highly charged and highly competitive industry like real estate and whispers of “did you hear she left her kids in the car alone while she got her hair done last week?” or “did you hear he’s leaving his wife for his mistress with implants?” None of this is surprising because it’s a petty part of our culture.

What happens when these things are published online about an agent? What if they are untrue? If posted by another agent, they obviously violate the National Association of Realtors’ Code of Ethics and are subject to discipline or possibly losing their license.

A now defunct website

We all know that New York real estate is like the wild west- they don’t have a MLS and is a free for all where the fittest survive. Very Darwin-esque. AGBeat could not independently verify, but according to the New York Times (NYT), a website that is now defunct sought to shed light on “the underbelly of the Manhattan real estate market” as it pointed out landlords’ abusive behavior, bad broker behavior and the like.

We recently reported on a brokerage new to New York that was already sensing threats and was being refused payment for legitimate services. We are not surprised that New York is the home of a site that exposes real estate, it makes perfect sense.

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The website exposes brokers that use fake prospects to pump up inferior listings, landlords that steal from residents, and NYT says a post in 2008 reported a fight between Prudential agents at a party (that they rebutted in comments).

How much is too much?

Nothing we’ve said yet seems too detrimental. Consumers accuse the industry of these behaviors publicly every day in their various social networks and to each other. But how much is too much? Holiday party gossip? No. Fake prospects? Not really. Calling an agent a wife beating anti-Semite? You bet.

The site began blogging about Christakis Shiamili, the founder of Ardor New York Real Estate, accusing him of anti-Semitism, domestic violence and mistreatment of his employees. Shiamili sued the site operator which during court proceedings was discovered it was another agent, competitor Ryan McCann of the Real Estate Group of New York.

Shiamili said, “They seemed to be very vindictive people. And they were putting stuff not only on me but my managers. A lot of my managers were freaking out.”

The lawsuit was dismissed, but Shiamili appealed. The Court of Appeals said McCann was protected under the “Communications Decency Act” wherein website owners are not liable for material they did not create themselves.

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An individual who used an anti-Ardor pseudonym and claimed to be an Ardor agent, accused Mr. Shiamili of terrorizing agents, keeping too much of their commissions, and referring to blacks, Hispanics and Jews as “those people” which Shiamili maintains is false. McCann took the negative comments and featured them in a blog post saying “and now it’s time for your weekly dose of hate” and noted “We are so. not. afraid.” The post featured a picture of Shiamili as Jesus, “King of the Token Jews” which led to accusations of his cheating on his wife. Again, he maintains this is all untrue and has hurt his business.

The NYT featured the Judge’s responses:

Judge Ciparick noted that the comments about Mr. Shiamili were “unquestionably offensive and obnoxious,” but added that the site’s operators had “not become ‘content providers’ by virtue of moving one of the comments to its own post.”

Chief Judge Jonathan Lippman, in a dissenting statement, struck a note of caution, suggesting that the Web site was more than “a passive conduit of this defamatory material,” and adding, “An interpretation that immunizes a business’s complicity in defaming a direct competitor takes us so far afield from the purpose of the CDA as to make it unrecognizable.”

Is this free speech?

We cannot locate Ryan McCann as holding any professional license in the State of New York as a real estate salesperson, broker or Realtor, so it is unclear whether the local or national board has already taken actions for his potential breaches of the Code of Ethics. Shiamili has not decided what to do at this point given the alleged damage to his business.

The internet has given rise to anonymity and venomous commentary, but is it a First Amendment right? Most likely. Should it be protected under the Communications Decency Act? Maybe. There is a fine line between personal opinion and libel, especially when one business is writing about a competitor.

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How should Shiamili or others that are victims of allegedly false attacks proceed- legal actions, communications strategy with a professional PR team, let it go, or fight to the death? The Court in NY State has made clear this behavior is legal in their state, but it is still unethical to go after another broker without proof, be it in their own words or in the publication of others’ words, would you agree? What do you think of all of this?

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15 Comments

15 Comments

  1. Wayne Harriman

    June 25, 2011 at 9:19 am

    I'm not a lawyer, didn't play one on TV, nor did I stay in a Holiday Inn Express, but even to my layman's befogged and befuddled mind, this smells so much like libel that the stench fairly rises from the page in waves. Having said that, it appears New York laws regarding defamation are rather convoluted and unfortunately, this offensive behavior is protected under the CDA, unless some of the comments were actually made by McCann himself. Even if what was said was published as being opinion, even opinion can be held as being defamatory if the underlying facts the opinion is based on are false. The only defense here would be if the opinion cannot be proven to be true or false. However, I would think a statement such as "he is a wife-beating anti-Semite" could be proven or refuted. Any way you slice it, I think Mr. Shiamili is going to have a hard time winning this battle in NY.

  2. Joe Loomer

    June 26, 2011 at 7:54 am

    Fortunately or unfortunately – the real estate industry is a self-policing entity with the ability to get around the double-jeopardy restraints via enforcement of NAR code of ethics, Real Estate Commission guidlines, licensing requirements, and local and state instructions and regulations (which include punitive and non-punitive measures). Seems like it may have already been applied here in the case of one Mr. Mcann….

    Navy Chief, Navy Pride

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