A little birdie sent Realty Times an email of a listing that had been Photoshopped to real advantage. Seems the telephone lines that converged over the home were edited out of the main presentation photo. To the agent's credit, the secondary photos included the offending wires.

The question is -- did the agent break any laws or rules?

Photoshopping is a term that refers to photo-editing software. It can be used to make homes more appealing and may seem like a harmless extension of staging the home for marketing purposes, but it's "no different than providing false data about the property in the text portion of the listing," believes Russ Bergeron, CEO of SoCal MLS.

While Bergeron says he never "comments on policing and enforcement issues," he says boards have different outlooks.

"Each of our shareholder boards has their own "MLS" function that handles this type of thing - all with different rules and different punishments," he says. "That's one of the reasons we want to go with a common set of rules throughout SoCal.

That means that the board through which the agent submitted the listing, could take it up as some kind of professional standards or violation of code of ethics, but it's likelier that the agent will simply be told not to photoshop unflattering elements out of his photos anymore.

Speculates Bergeron, "Obviously a buyer might want to pursue it after the fact but since he showed both sets of photos there is probably no harm, no foul. Had he just included the wireless photos then I would think he is on shakier ground, but only if someone bought the house sight unseen."

Bob Hunt, NAR director agrees. "I doubt that this would be illegal under California law," he says, reminding Realty Times that he is not an attorney. "The relevant code section would be Business and Professions Code #17500, but what that says is that 'it is unlawful ... to make or disseminate or cause to be made or disseminated ... any statement, concerning that real or personal property ..., which is untrue or misleading.' So, I suppose one could argue that no false or misleading statement has been made."

But he also raises the possiblity of a potential lawsuit. "Could someone win a civil case based on a doctored photo?" he conjectures. "Probably, though I doubt so in this case, because a potential plaintiff would have likely seen the property and the wires. Of course, if they bought it over the Internet, in part on the basis of the pictures, that might be grist for a good case."

Hunt points out that Article 12 of the Code of Ethics requires Realtors to present a "true picture" in their advertising. "It would seem that this case would not pass the "true picture" test," he says. "Nonetheless, I wouldn't want to generalize from this to a position holding that all doctored photos used by Realtors constitute a violation of Article 12."

If that were true, every Realtor who uses Photoshop to take a few pounds or wrinkles off of marketing photos would be hauled up on charges, he says.

However, it's one thing to remove distracting objects from a kitchen counter or messy backyard -- it's another to attempt to set aside a material fact. With the popular dissemination of listings online, there may be sites that carry this listing with only the main photo of the house without the wires. What will consumers think when they drive by the house and see the wires are there? They won't think more highly of the Realtor, that's for certain.

"There's a lot of grey area here," says Hunt. "This looks to be one of those cases where the law has not anticipated or caught up with technology."

Published: March 9, 2007

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