Amazing new technology to make the law vanish?!

Like that title? It was my clever ruse to get you to read this article…

Technology is wonderful. It can help REALTORS® satisfy complex regulatory obligations, leaving them to focus on their business. However, one thing that technology can’t do is make the law go away. For that reason, picking the right technology – and the right technology provider – is perhaps trickier than one might expect.

Take the National Do Not Call List (DNCL) for example. Many providers offer software solutions that assist REALTORS® in managing their list subscription. However, simply purchasing software does not alleviate a brokerage’s obligation (if they conduct telemarketing) to register as a telemarketer with the National DNCL Operator or purchase a subscription to the list. The same principle applies to other laws, such as Canada’s Anti-Spam Law (CASL) and the FINTRAC regime; the legal obligations to comply with the law remain no matter what fancy software is purchased.

So why bother with technology then? Because it’s 2016. Using manual paper methods can be hard, time consuming and prone to errors. Returning to the National DNCL example, would you rather look up the list manually or have software automatically provide you with a vetted number?

All this to say, it’s important to understand the limitations of what you’re buying. There are a few ways to do that. The most effective is to consult your lawyer. I appreciate that isn’t always a practical option so here are some general tips to get you started:

  • Figure out your obligation by reading, reading and reading. Start with the materials on REALTOR Link® and work your way from there. The bonus of all this reading is that it will help narrow your focus to help you decide what you really need to buy.
  • Read the fine print: more reading! Read the terms and conditions associated with the technology solution you are interested in. Of course, all the terms and conditions are important but pay particular attention to clauses related to warranties, indemnities and liability. Maybe they state the provider will indemnify you if you are fined by a regulator or maybe they say you’re on your own. Who knows? So keep reading.
  • Conduct a reference check: like reading yet? Just a bit more. Many regulators publish the names of companies that are found violating the law. Check out:

Talk to the provider about anything that concerns you. Keep in mind the provider may also have had issues in the past but wasn’t specifically cited. So, don’t forget to look the company up using a search engine, too.

  • Take grandiose claims with a grain of salt:
    • “Certified FINTRAC compliance!”
    • “Make all your DNCL problems go away!”
    • “Spam-a-not – CASL made easy!”

OK, I made those up … but don’t let grandiose claims distract you from all the great reading you’ve done.

Ultimately, picking the right provider is an exercise in risk management. Take the time to do it right and save yourself aggravation down the road.

The article above is for information purposes and is not legal advice or a substitute for legal counsel.

Simon Parham, Legal Counsel, is always on hand to provide helpful advice to CREA, Boards, and Associations on all aspects of federal legislation that can be reduced to an acronym, including: PIPEDA; FINTRAC; and the DNCL. In his spare time, Simon enjoys running, camping, discovering the world with his daughter, and planning his “big year.”

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