A dispute over a homeowner's listing on Daft.ie has raised issues about data protection, writes Karlin Lillington
JOE DUFFY and LiveLineget a lot of odd calls and stories (indeed, that is one of the attractions for radio addicts like me), but one of the more bizarre came in last week.
A man rang explaining that he'd posted his house for sale on Daft.ie. Like many homeowners who use the site, he'd chosen a listing on Daft as an alternative to using an estate agent. He duly wrote up the description of his house, took a bunch of pictures of the exterior and interior, and uploaded those.
The next day he went to have a look at his listing and found his house was still there, but was now listed with an estate agent he'd never heard of, using one of the photos he had uploaded, and some of the information on the listing - oh, and little matters like square footage - had been amended and were now incorrect.
To add insult to injury, because the estate agent had posted his hijacked version of the houselisting after the man had posted his original listing, the estate agent's listing now came up first on the site. The suggestion was made that maybe this wasn't all a bad thing - after all, if the agent referred a buyer to him, he wouldn't need to pay commission as he hasn't a contract with the estate agent. Perhaps it would generate more responses, even (though I think this was a bit of a devil's advocate argument).
The man wasn't for turning. He was rightly appalled that someone else was now listing his house and annoyed that the entire purpose of the exercise was to avoid estate agents and commission in the first place.
One caller argued that the situation was yet another reason why we need an oversight body for estate agents. A regulator for this sector and greater transparency in the sector would be generally welcome (eg openly accessible bids and selling prices, as is common in the US and other countries, which allows people to see house values in the area they are considering buying in, and enables buyers and sellers to confirm bids were actually made at the prices the agent states).
But this particular dispute doesn't need a regulator. It just needs a lawyer and the Data Protection Commissioner. I rang up to make this point and explained why. I've since confirmed that my opinion was absolutely correct, that this estate agent's actions were fraudulent, a violation of copyright protection, and a violation of data privacy regulation.
Here's why.
"There's no relationship of contract between the person who's listed the house and the estate agent," says Paul Lambert, solicitor with Merrion Legal Solicitors in Dublin and a specialist in online law. Posting a listing without the owner's permission "would be a deliberate intent to try to represent the owner and get commission themselves on the house".
At the very least, the agent has committed an act of misrepresentation and interference of contractual relations, he says, and possibly could be sued for fraud, which in legal terms is a more serious offence and falls under criminal, rather than civil, law.
As for copyright - as another caller correctly pointed out - any pictures you take yourself and upload to a website and any content you supply is copyrighted to you unless you expressly indicate otherwise. Notes Lambert, as the agent had no licence granted to use the material, he violated Ireland's Copyright and Related Act 2000 and the homeowner's ownership of the photos.
Finally, on the issue of data privacy: I confirmed with Gary Davis of the Data Protection Commissioner's office that the agent, by making use of the photo, the address, and any other details about the house and implying a working relationship with the home owner, becomes a data controller and processor and subject to the full force of the law as such. His obligations would be to obtain data openly and fairly, manage it responsibly, and not to use it for any other purpose than for which the data subject gave over the information to the controller in the first place.
The way in which the homeowner's data was used "would be a breach of because the person put up the information to advertise their own house and did not give permission for the estate agent to take it. It's unfair obtaining of the data, because they were getting someone's data and using it without their consent."
Davis recommended that the homeowner and anyone else who has experienced such activities by estate agents file a complaint with their office as they will follow it up and have the ability to fine the responsible party. There's full information on doing this and on data privacy generally on their website: http://www.dataprotection.ie.
