BARRISTER'S BRIEFING: Update on Facebook Advertisement Targeting

All real estate Licensees are cautioned to strongly adhere to all federal, state and local laws pertaining to Fair Housing protections. Realtors have an additional duty to comply with Article 10 of the REALTOR Code of Ethics which states in part:

“REALTORS® shall not deny equal professional services to any person for reasons of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. REALTORS® shall not be parties to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.”

As such, Realtors should take note that Inman News recently reported that the Department of Housing and Urban Development is in serious discussions with Facebook over the social media company’s ad-targeting feature. Facebook advertisers are currently able to utilize Facebook’s ad-targeting platform to tailor advertisements to users on the basis of their “ethnic affinity” by choosing to exclude certain affinities such as African-American, Hispanic and Asian American. Some of these advertisements pertain to real estate.

To that end, four members of the U.S. Congress (Rep. Robin L. Kelly, Rep. Emanuel Cleaver, Rep. G.K. Butterfield and Rep. Yvette Clarke) sent a letter on Nov. 1 to  Facebook Chairman and CEO Mark Zuckerberg.  In that correspondence, they expressed dismay at a mechanism which they state makes Facebook “complicit in promoting restrictive housing practices.”

Facebook in a recent blog post defended the use of targeting options in some cases, but also said that advertisements that involve illegal discrimination in their content violate their internal advertisement policy.

UPDATE 11/9/2016: Last week a group of Facebook users filed a federal class-action lawsuit in the U.S. Northern District of California against Facebook, claiming that the ad-targeting technology in question is in violation of both the Fair Housing Act and the Civil Rights Act of 1964.

The Complaint specifically stated that: “There is no mechanism to prevent ad buyers from purchasing ads related to employment/housing and then excluding based on these illegal characteristics.” It went on to declare: “[N]o user can tell whether they are subject to illegal discrimination, because the discrimination occurs with the ads they do not see. As a result, the problem will not be remedied unless Facebook is forced to take additional action.”

Whether the ongoing discussions between HUD and Facebook will result in regulatory changes for all Licensees to adhere to remains to be seen. For more information regarding Fair Housing Laws or the Realtor Code of Ethics, go to www.realtors.org, or alternatively send an email to Leon.Cameron@HGAR.Com.

Editor’s Note: The foregoing article is for informational purposes only and does not confer an attorney/client relationship.  For a legal opinion specific to your situation, please consult a private attorney.

Leon Cameron, Esq.
Leon Cameron, Esq., is Director of Legal Services & Professional Standards Administrator for the Hudson Gateway Association of Realtors.