Facts and Arguments
When it comes to photo data, there is an interesting interplay between the obligations MLSs have to retain data, and the privacy concerns expressed by home buyers. On one hand, it's clear that the MLS has a responsibility to maintain the listing data, including the photos, as outlined by California Code 1088 (c), as follows:
On the other hand, the privacy concerns do occasionally have some merit and must be considered. But the demands for the removal of all photos (most of which show staging furniture that does not reveal the true state of the home as lived in) are clearly overreach.
That said - Agents are entrusted with the dual duties of behaving in an ethical and structured manner while at the same time meeting the needs of their customers who are buying these homes. What are the results of these competing requirements?
Behaviors and Consequences
An unfortunate "photo delete" anti-pattern has developed among the Agent community, where a buying Agent will make an improper request to have the photos removed from the listing after it has closed. MLS staff are no longer able to assist with such requests, as doing so would contravene the responsibilities outlined in 1088(c). Buyer Agents have recently started preemptively asking Listing Agents to delete photos before the closing, and in point of fact Listing Agents have no obligation to do so.
What is troubling about this behavior, is that the removal of photos from the MLS primarily hurts the internal MLS-using Agent community while only delivering some effectiveness at removing the photos from public facing websites who acquire the data 'downstream' from the MLS. Some websites (such as a Brokerage's "back office" system) have a legitimate claim to retain access to these photos - which they frequently lose when a full deletion of the photos is done prior to close of the listing as described above. The current behaviors provide inconsistent results regarding what sites remove the photos and what sites (or back office applications) don't.
So, this "photo delete" anti-pattern fails to a large degree at both goals: the client does not get an assurance that the photos are removed from the sites they might truly be concerned about, and the MLS is unable to maintain its data integrity for legitimate use by Agents and their clients in the future.
As stated earlier, the MLS team no longer has the ability to unilaterally remove photos from listings at the request of Agents after close. Instead, we are releasing a new feature to the MLS system called MLS Only Photos.
The new MLS Only Photos feature of the SFARMLS system is specifically aimed at realizing both goals. The experience will be simple: photos can be marked as private by the listing agent at any time while the listing is active in the MLS by selecting the photo and marking it "MLS Only When Off Mkt." This flag on each photo will indicate that only legitimate, non-public, uses of that photo will be permitted once the listing goes into ANY final end-of-lifecycle status (Expired, Canceled, Closed/Sold).
The public sites for IDX, and public advertising portals (Realtor.com, etc..) will not be able to get private photos in datafeeds, which is the identical result they see when we delete photos.
Imperfect with Improvements
The new MLS Only Photos functionality will deliver the same level of "delete the photo" that is being experienced by the manual process of physically deleting photos before closing (which contravenes our rules), with some key improvements:
- A "private" photo still exists inside the MLS for Agents to see later.
- The private photos do get transmitted to our NORCAL MLS ALLIANCE partner MLS systems*.
- Consumers of listing datafeeds won't initially need to make changes - they are already deleting (or not) deleting photos when the datafeeds shows that the photo count has been reduced to 1 (or 0). In fact, vendors won't know we've turned on this feature, which is by design.
Later, as we complete the training of Agents to use this feature in place of making delete requests, we will reach out to vendors with an addendum to our data licenses that requires them to remove photos they can no longer "see" in the datafeeds when they sync listings that have gone off-market as Expired, Canceled, or Closed/Sold.
* our MLS partners have very limited use of the listings and photos we send them,
and are not generally a privacy concern
Jay Pepper-Martens is the Chief Technology Officer at SFAR. He, along with SFAR's MLS Director Hud Bixler, has crafted this strategy for meeting the needs of Agents and Consumers regarding photo data.
For questions about the upcoming Private Photos feature of the MLS, please reach out to Jay Pepper-Martens via SFAR's MLS Support Team by clicking "New Support Ticket" at the top of this page. Include you question there and Jay or Hud will get back to you.