The Toronto Real Estate Board (TREB) has published a proposal for a Virtual Office Website (VOW) policy, and members have 60 days to provide input and feedback.

The policy governs the use of secure password-protected websites designed to allow consumers to search and display MLS listing data.

“This policy demonstrates TREB’s receptivity and responsiveness to new and innovative business models – improving the level of service for consumers and providing Realtor members with greater flexibility,” says TREB president Bill Johnston in a statement.

TREB says the new policy has been in development since July 2010 and that it gives “due consideration to TREB’s legal responsibility to ensure the protection of consumer data.”

In May, the federal Competition Bureau filed an application with the Competition Tribunal to stop what it called “anti-competitive practices by TREB that are denying consumer choice and the ability of real estate agents to introduce innovative real estate brokerage services through the Internet.” Competition Bureau Commissioner Melanie Aitken said in a statement, “We shared our concerns with TREB, as well as what would be necessary to address them. Ultimately, it was necessary for us to seek a legally binding order from the Tribunal to ensure greater competition and increased innovation in the market for real estate services in Toronto and the surrounding area.”

But today TREB says, “This VOW policy confirms TREB’s strong belief in open competition and in its members’ competitive spirit, quite independent of the Competition Commissioner’s claims and approach. To this end TREB has, and will continue to, take the necessary steps to empower Realtor members to provide the highest level of service for their customers.”

Below, provided by TREB, is the overview of the new policy, followed by a Q&A (also provided by TREB) and the entire proposed policy.

Overview

 A Virtual Office Website is a secure password-protected internet website that provides consumers with the opportunity to search MLS® listing data, with the benefit of a REALTOR® Member’s oversight, supervision, and accountability.

 This policy is designed to enhance the portfolio of services offered by REALTOR® Members for the benefit of their customers with whom a broker-consumer relationship has been properly established.

 TREB retains the right to monitor VOW activity to ensure appropriate use of the MLS® database and MLS® data.

 This policy strikes a balance between consumer privacy concerns, the protection of consumer rights, and fostering competition.

 In the interest of protecting the consumer, VOW operators must ensure both the reliability and safekeeping of data. Individual Sellers will retain the right to opt-out of sharing some (or all) information.

 Certain data, like sellers’ names and contact information, is exempt from publishing. All sale data remains privacy (PIPEDA) and RECO Rule compliant.

Prior to gaining access to a VOW, the consumer must consent to a “Terms of Use” agreement.

Q&A provided by TREB for its members:

A VOW gives brokers the opportunity to operate a secure, password-protected website (or a feature of a website) that is capable of supplying real estate services to consumers. This is provided that the Member has a properly established broker-consumer relationship, which includes satisfying agency and disclosure obligations, and executing any required agreements. A VOW can offer consumers the ability to view MLS® data for a designated period of time, with the Member’s oversight, supervision, and accountability.

A Member may operate more than one VOW, and an Affiliated VOW Partner (or Partners) can operate a VOW on behalf of a Member (or Members), provided there is Member oversight, supervision, and accountability. If however, TREB has suspended or terminated an AVP’s access, that AVP cannot operate on behalf of other Members.

To operate a VOW, a Member must notify TREB in writing of their intention to do so, and initiate a license agreement with TREB, which verifies that the TREB MLS® data may not be used for purposes other than operating a VOW. The VOW must be readily accessible to TREB and all Members so that compliance with MLS® and VOW Rules and Policies can be verified.

Members must first properly establish a broker-consumer relationship. Consumers can initiate VOW access by providing an email address and agreeing to Terms of Use, both of which the Member must verify. The consumer or the Member can then determine a unique username and password combination, which is valid for up to 90 days, with an opportunity to renew it thereafter.

Members must maintain a record of the consumer’s name, email address, username and password for at least 180 days after password expiry, and maintain an audit trail of consumer activity on the VOW. These may be requested by TREB if a security breach or violation of MLS® and VOW Rules and Policies is suspected.

Members are required to utilize security protections on the VOW, though not greater than those used by TREB. Members are required to monitor the VOW, to protect it from unauthorized access, use or reproduction of MLS® data.

The Terms of Use cannot impose a financial agreement between the Member and consumer. Any financial agreement must be separate from the VOW Terms of Use.

While a VOW may include supplemental features and information that is clearly identified as such, listings from sources other than TREB must be clearly identified and searched separately.

Members cannot alter the content of MLS® data displayed on a VOW as is provided in TREB’s MLS® system. VOWS must display a TREB MLS® copyright notice and accuracy disclaimer, a privacy policy, and a Member’s contact information, the latter of which can be used by consumers to get more information about the VOW’s listings. Members must be willing and able to respond to such inquiries. MLS® data available on a VOW must be refreshed at least every 24 hours.

Those who operate VOWS are not required to obtain separate permission from Members whose listings are displayed on the VOW however; the listing Member’s name must be displayed prominently in at least the size of the listing data.

Certain confidential data may not be displayed on VOWS as follows:

a) Expired, withdrawn, suspended or terminated Listings and pending solds or leases, including Listings where sellers and buyers have entered into an agreement that has not yet closed;

b) Sold data, unless the method of use of actual sales price of completed transactions is in compliance with RECO Rules and applicable privacy laws;

c) The compensation offered to other Members;

d) The seller’s name and contact information, unless otherwise directed by the seller to do so; and

e) Instructions or remarks intended for cooperating brokers only, such as those regarding showing or security of the listed property.

VOWs may exclude listings from display based on objective criteria such as geography, price and property type.

Sellers may choose not to display their listings or property addresses on the Internet. Listing Members must advise TREB accordingly, in which case VOWs will not be permitted to display such information. Members who operate VOWS may however, provide such information to consumers via other methods such as email or fax. A copy of such sellers’ instructions must be retained by the listing Member for at least one year and provided to TREB within 48 hours upon request.

You must get the necessary consents. Sold data (i.e., Listing Information relating to properties that have sold) shall be deemed confidential and withheld from a download if the actual sales prices of completed transactions are not readily publicly accessible or if the method of use is contrary to provincial or federal law, including all RECO Rules and PIPEDA.

A Member’s VOW may not make available expired, withdrawn, suspended or terminated Listings and pending solds or leases, including Listings where sellers and buyers have entered into an agreement that has not yet closed.

Here is the full proposed policy:

Policy governing use of MLS® data in connection with internet brokerage services offered by Toronto Real Estate Board Members (“Virtual Office Websites”)

I. Definitions and Scope of VOW Policy

2. For purposes of this VOW Policy, “Virtual Office Website” (“VOW”) refers to a Member’s secure, password-protected internet website, or a feature of a Member’s internet website, through which the Member is capable of providing real estate brokerage services to consumers with whom the Member has first established a broker-consumer relationship (as may be designated by provincial and/or federal law) where the consumer has the opportunity to search MLS® data, subject to the Member’s oversight, supervision, and accountability.

a) A Member may designate an Affiliated VOW Partner (“AVP”) to operate a VOW on behalf of the Member, subject to the Member’s oversight, supervision and accountability and the terms of this VOW Policy.

b) A broker or salesperson registered with a Member may, with the Member’s consent, operate a VOW or have a VOW operated on the Member’s behalf by an AVP. Such a VOW is subject to the Member’s oversight, supervision and accountability and the terms of this VOW Policy.

c) Each use of the term “Member” in this VOW Policy shall have the meaning designated in Article 2 of the By-laws and shall also include a Member’s brokers and salespersons (with the exception of references to “Member’s consent”, “Member’s oversight, supervision, and accountability,” and in paragraph 22(a), below, to “Member acknowledges”). Each reference to “VOW” or “VOWs” herein refers to all VOWs, whether operated by a Member, by a Member’s broker or salesperson, or by an AVP on behalf of a Member.

3. The right of a Member’s VOW to display Listings in response to Consumer searches is limited to the display of MLS® data supplied by TREB in which the Member has member rights. This does not preclude a Member with offices participating in different real estate boards or associations from operating a master website with links to the VOWs of its other offices.

4. Members’ VOWs, including those operated for Members by AVPs, may also provide other features, information, or functions in addition to VOWs (including the Internet Data Exchange (“IDX”) function).

5. The display of Listing Information on a VOW does not require separate permission from the Member whose Listings will be available on the VOW.

6. Any capitalized term used herein shall have the same meaning as contained in the MLS® Rules and Policies Glossary, unless otherwise expressly defined in this VOW Policy.

II. Policies Applicable to Members’ VOWs

7. A Member may provide brokerage services via a VOW that include making Listing Information available, but only to consumers with whom the Member has first established a lawful broker-consumer relationship, including, where necessary, completion of any actions required by provincial and/or federal law in connection with providing real estate brokerage services to clients and customers (“Consumer” or “Consumers”). Such actions may include, but are not limited to, satisfying all applicable agency, non-agency, and other disclosure obligations, and execution of any required agreement(s).

8. A Member’s VOW must obtain the identity of each Consumer and obtain each Consumer’s agreement to Terms of Use of the VOW, as follows:

a) Consumers must provide their name and a valid email address. The Member must send an email to the address provided by the Consumer confirming that the Consumer has agreed to the Terms of Use (described in paragraph 7(c) below). The Consumer may be permitted to access the VOW only after the Member has verified that the email address provided is valid and that the Consumer agreed to the Terms of Use.

b) The Consumer must supply a username and a password, the combination of which must be different from those of all other Consumers on the VOW, before being permitted to search and retrieve Listing Information via the VOW. The username and password may be established by the Consumer or may be supplied by the Member, at the option of the Member. An email address may be associated with only one username and password. Consumers’ passwords may be valid for up to 90 days, after which such passwords must be renewed or reconfirmed. The Member must, at all times, maintain a record of the name and email address supplied by the Consumer, and the username and current password of each Consumer. Such records must be kept for not less than 180 days after the expiration of the validity of the Consumer’s password. If TREB has reason to believe that a Member’s VOW has been the cause of, or permitted a breach in, the security of the MLS® data or a violation of this VOW Policy, or the MLS® Rules and Policies (including the VOW Rules) related to use by one or more Consumers, the Member shall, upon request of TREB, provide to TREB a copy of the record of the name, email address, username, current password, and audit trail, if required, of any Consumer identified by TREB to be suspected of involvement in the breach or violation.

c) The Consumer must be required to affirmatively express agreement to a “Terms of Use” agreement that requires the Consumer to open and review an agreement that provides at least the following:

i) That the Consumer acknowledges entering into a lawful broker-consumer relationship with the Member.

ii) That all MLS® data obtained from the VOW is intended only for the Consumer’s personal, non-commercial use.

iii) That the Consumer has a bona fide interest in the purchase, sale, or lease of real estate of the type being offered through the VOW.

iv) That the Consumer will not copy, redistribute, retransmit, or otherwise use any of the data or Listing Information provided, except in connection with the Consumer’s consideration of the purchase, sale, or lease of an individual property.

v) That the Consumer acknowledges TREB’s ownership of, and the validity of TREB’s proprietary rights and copyright in the MLS® database, MLS® data, TREB’s MLS® System, and Listing Information.

vi) That the Consumer will not, directly or indirectly, display, post, disseminate, distribute, publish, broadcast, transfer, sell or sublicense any Listing Information to another individual or entity. The prohibited uses expressly include “scraping” (including “screen scraping” and “database scraping”), “data mining” or any other activity intended to collect, store, re-organize, summarize or manipulate any Listing Information or any related data.

vii) After the Consumer has opened for viewing the Terms of Use agreement, a “mouse click” is sufficient to acknowledge agreement to those terms. The Terms of Use agreement may not impose a financial obligation on the Consumer or create any representation agreement between the Consumer and the Member.

viii) The Terms of Use agreement shall also expressly authorize TREB, and other TREB Members or their duly authorized representatives, to access the VOW for the purposes of verifying compliance with MLS® Rules and Policies (including the VOW Rules) and monitoring the display of Members’ Listings by the VOW.

ix) Every VOW must display a privacy policy that boldly informs Consumers of, and obtains Consumers’ consent to, all the ways in which Personal Information that they provide may be collected, used or disclosed, including the fact that Personal Information may be shared with TREB for auditing and/or legal purposes.

d) An agreement entered into at any time between the Member and Consumer imposing a financial obligation on the Consumer or creating representation of the Consumer by the Member must be established separately from the Terms of Use, must be prominently labeled as such, and may not be accepted solely by mouse click.

9. A Member’s VOW shall include any copyright notice as may be provided by TREB from time to time regarding TREB’s copyright in MLS® data.

10. A Member’s VOW must prominently display an email address, telephone number, or specific identification of another mode of communication (e.g., live chat) by which a Consumer can contact the Member to ask questions, or get more information, about Listings displayed on the VOW. The Member, or such Member’s broker or salesperson, must be willing and able to respond knowledgeably to inquiries from Consumers about Listings within the market area served by that Member and displayed on the VOW.

11. A Member’s VOW must protect the MLS® data from misappropriation by employing reasonable efforts to monitor for and prevent “scraping”, data mining, and other unauthorized access, reproduction, or use of the MLS® database, MLS® data and/or any related information.

12. A Member’s VOW must comply with the following additional requirements:

a) No VOW shall display Listing or property address of any seller who has affirmatively directed the listing brokerage to withhold their Listing or property address from display on the internet. The listing brokerage or salesperson shall communicate to TREB that a seller has elected not to permit display of the Listing or property address on the internet. Notwithstanding the foregoing, a Member who operates a VOW may provide to Consumers via other delivery mechanisms, such as email, fax, or otherwise, the Listing or property address of sellers who have determined not to have the Listing or address for their property displayed on the internet.

b) A Member who lists a property for a seller who has elected not to have the Listing or the property address displayed on the internet shall cause the seller to execute a document that so indicates. The Member shall retain such documents for at least one year from the date they are signed, or one year from the date the Listing expires or is terminated, whichever is later.

c) With respect to any VOW that:

i) allows third-parties to write comments or reviews about particular Listings or displays a hyperlink to such comments or reviews in immediate conjunction with particular Listings, or

ii) displays an automated estimate of the market value of the Listing (or hyperlink to such estimate) in immediate conjunction with the Listing,

the VOW shall disable or discontinue either or both of those features as to the seller’s Listing at the request of the seller. The listing brokerage shall communicate to TREB that the seller has elected to have one or both of these features disabled or discontinued on all Members’ websites. Except for the foregoing and subject to subparagraph 11(d), a Member’s VOW may communicate the Member’s professional judgment concerning any Listing. Nothing shall prevent a VOW from notifying its Consumers that a particular feature has been disabled “at the request of the seller”.

d) A VOW shall maintain a means (e.g., email address, telephone number) to receive comments about the accuracy of any MLS® data or information that is added by or on behalf of the VOW Member beyond that supplied by TREB and that relates to a specific property displayed on the VOW. The VOW Member shall correct or remove any untrue, deceptive or misleading data or information relating to a specific property within 48 hours of receipt of a communication from TREB or the listing brokerage for that property explaining why the data or information is untrue, deceptive or misleading. However, the VOW Member shall not be obligated to remove or correct any data or information that simply reflects good faith opinion, advice, or professional judgment.

e) Each VOW shall refresh MLS® data available on the VOW not less frequently than every 24 hours.

f) Except as provided elsewhere in this VOW Policy, or in MLS® Rules and Policies (including the VOW Rules), no portion of the MLS® database or Listing Information may be distributed, provided, or made accessible to any person or entity.

g) A VOW may exclude Listings from display based only on objective criteria, including, but not limited to, factors such as geography, list price, and type of property.

13. A Member who intends to operate a VOW to display Listing Information must notify TREB in writing of its intention to establish a VOW and must make the VOW readily accessible to TREB and to all Members for purposes of verifying compliance with this VOW Policy, and any other applicable MLS® Rules and Policies (including the VOW Rules).

14. A Member may operate more than one VOW itself or through an AVP. A Member who operates a VOW itself shall not be precluded from also operating VOWs in conjunction with AVPs.

III. Policies respecting Data Feeds, Security, AVPs and related matters

15. TREB will permit Members to operate VOWs, or to have VOWs operated for them by AVPs, subject to the requirements of all provincial and/or federal laws, including all RECO Rules, PIPEDA and this VOW Policy and the VOW Rules.

16. TREB will, if requested by a Member, provide basic “downloading” of non-confidential MLS® data, including without limitation address fields, listing types, photographs, and links to virtual tours. “Confidential data” includes that which Members are prohibited from providing to Consumers orally and by all other delivery mechanisms. They include fields containing the information described in paragraph 24 of this VOW Policy, provided that sold data (i.e., Listing Information relating to properties that have sold) shall be deemed confidential and withheld from a download if the actual sales prices of completed transactions are not readily publicly accessible or if the method of use is contrary to provincial or federal law, including all RECO Rules and PIPEDA. For purposes of this VOW Policy, “downloading” means electronic transmission of data (i.e., data feed) from TREB servers to a Member’s or AVP’s server on a persistent basis via RETS feed, FTP download, or in such format as may be determined by TREB from time to time. TREB may also offer a transient download. In such case, it shall also, if requested, provide a persistent download, provided that it may impose on users of such download the approximate additional costs incurred by it to do so.

17. This VOW Policy does not require TREB to establish publicly accessible websites displaying Members’ Listings.

18. The VOW data feed will include all of the non-confidential MLS® data included in the data feed described in paragraph 15 above except for Listings or property addresses of sellers who have elected not to have their Listings or addresses displayed on the internet.

19. TREB may pass on to those Members who request downloading of Listing Information the reasonably estimated costs incurred by TREB in adding or enhancing its “downloading” capacity to enable such Members to operate VOWs.

20. TREB will require that Members (1) utilize appropriate security protection, such as firewalls, as long as such requirement does not impose security obligations greater than those employed concurrently by TREB; and (2) maintain an audit trail of Consumers’ activity on the VOW and make that information available to TREB if TREB has reason to believe that any VOW has been the cause of, or permitted a breach in, the security of the MLS® data or a violation of applicable MLS® Rules and Policies (including the VOW Rules).

21. Except as provided in this VOW Policy, TREB will not prohibit Members from enhancing their VOWs by providing, information obtained from sources other than TREB, additional technological services (such as mapping functionality), or information derived from non-confidential MLS® data (such as an estimated monthly payment derived from the listed price), or regulating the use or display of such information or technological services on any VOW.

22. TREB will not restrict the format of MLS® data displayed on a VOW or regulate the appearance of VOWs.

23. Subject to the provisions below, TREB will make MLS® data available to an AVP for the exclusive purpose of operating a VOW on behalf of a Member and will make MLS® data available to an AVP under the same terms and conditions as those applicable to Members. No AVP has independent member rights in TREB or MLS® data by virtue of its right to receive MLS® data on behalf of a Member, or the right to use MLS® data except in connection with operation of a VOW for a Member. AVP access to MLS® data is derivative of the rights of the Member on whose behalf the AVP is downloading MLS® data.

a) A Member or AVP may establish the AVP’s right to receive and use MLS® data by providing to TREB a document in which the Member acknowledges its selection of the AVP to operate a VOW on its behalf.

b) TREB will not charge an AVP, or a Member on whose behalf an AVP operates a VOW, more than a Member that chooses to operate a VOW itself (including any fees or costs associated with a license to receive MLS® data, as described in paragraph 22(g), below), except to the extent that TREB incurs greater costs in providing MLS® data to the AVP than TREB incurs in providing MLS® data to a Member.

c) TREB will not place data security requirements or restrictions on use of MLS® data by an AVP that are not also imposed on Members.

d) TREB will permit an AVP to download Listing Information in the same manner (e.g., via a RETS feed, FTP download, or in such format as may be determined by TREB from time to time), at the same times and with the same frequency that TREB permits Members to download Listing Information to Members’ VOWs.

e) TREB will deal directly with an AVP in order to resolve technical problems with the data feed. However, TREB may require that the Member on whose behalf the AVP is operating the VOW participate in such communications if TREB reasonably believes that the involvement of the Member would be helpful in order to resolve the problem.

f) TREB will not condition an AVP’s access to a data feed on the financial terms on which the AVP provides the website for the Member.

g) TREB will require Members and AVPs to execute a license or similar agreements sufficient to ensure that Members and AVPs understand and agree that MLS® data provided by TREB may be used only to establish and operate a VOW on behalf of the Member and not for any other purpose.

h) TREB will not (i) prohibit an AVP from operating VOWs on behalf of more than one Member, and several Members may designate an AVP to operate a single VOW for them collectively, (ii) limit the number of entities that Members may designate as AVPs for purposes of operating VOWs, or (iii) prohibit Members from designating particular entities as AVPs except that, if an AVP’s access has been suspended or terminated by TREB, TREB may prevent an entity from being designated an AVP by another Member during the period of the AVP’s suspension or termination.

i) Except as stated below, TREB may not suspend or terminate an AVP’s access to MLS® data (a) for reasons other than those that would allow TREB to suspend or terminate a Member’s access to MLS® data, or (b) without giving the AVP and the associated Member(s) prior notice and the process set forth in the applicable provisions of the By-laws or MLS® Rules and Policies for suspension or termination of a Member’s access. Notwithstanding the foregoing, TREB will immediately terminate an AVP’s access to MLS® data (a) if the AVP is no longer designated to provide VOW services to any Member, (b) if the Member for whom the AVP operates a VOW ceases to maintain its status with TREB, (c) if the AVP has downloaded MLS® data in a manner not authorized for Members and that hinders the ability of Members to download MLS® data to Members’ VOWs, or (d) if the associated Member or AVP has failed to make required payments to TREB in accordance with TREB’s generally applicable payment policies and practices.

24. TREB will not prohibit, restrict, or impede a Member from referring Consumers to any person or from obtaining a fee for such referral.

IV. Requirements on the Operation of VOWs and Members

25. A Member, whether through a Member’s VOW or by any other means, may not make available for search by, or display to, Consumers the following MLS® data intended exclusively for other Members and their brokers and salespersons, subject to applicable laws, regulations and the RECO Rules:

a) Expired, withdrawn, suspended or terminated Listings and pending solds or leases, including Listings where sellers and buyers have entered into an agreement that has not yet closed;

b) Sold data, unless the method of use of actual sales price of completed transactions is in compliance with RECO Rules and applicable privacy laws;

c) The compensation offered to other Members;

d) The seller’s name and contact information, unless otherwise directed by the seller to do so; and

e) Instructions or remarks intended for cooperating brokers only, such as those regarding showing or security of the listed property.

26. The content of MLS® data that is displayed on a VOW may not be changed from the content as it is provided in TREB’s MLS® System. MLS® data may be augmented with additional data or information not otherwise prohibited from display as long as the source of such other data or information is clearly identified. This requirement does not restrict the format of MLS® data displayed on VOWs or the display on VOWs of fewer than all of the Listings or fewer than all of the authorized data fields.

27. There shall be a notice on all MLS® data displayed indicating that the data is deemed reliable but is not guaranteed accurate by TREB. A Member’s VOW may also include other appropriate disclaimers necessary to protect the Member and/or TREB from liability.

28. Any Listing displayed on a VOW shall identify the name of the listing brokerage or salesperson in a readily visible color, and reasonably prominent location, and in typeface not smaller than the typeface used in the display of Listing data.

29. The number of Listings that Consumers may view or retrieve on or from a VOW in response to an inquiry will be limited to 100 Listings.

30. TREB will not prohibit Members from downloading and displaying or framing listings obtained from other sources, e.g., other real estate boards or associations or from brokers not participating in TREB, etc., but may require either that (i) such information be searched separately from listings obtained from other sources, including other real estate boards or associations, or (ii) if such other sources are searched in conjunction with searches of the Listings available on the VOW, require that any display of listings from other sources identify such other source.

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