1 Feb 2003, 09:00

A woman was selling her house. In the standard listing agreement with the real estate agent, the woman agreed to 'the listing information and particulars of the sale of the property being passed to any person for marketing purposes and for the compilation and distribution of statistics by the Real Estate Institute of New Zealand.'

A sale was arranged and, prior to settlement, the agent distributed a leaflet locally advertising the sale, and naming the woman and her address. The woman alleged the sale was meant to be kept quiet, and that the distribution of the leaflet had breached her privacy.

I considered the complaint under principles 3 and 11. I formed the opinion that there was no breach of principle 11 and that, although there had been a breach of principle 3, it had not led to harm of the type specified in section 66 of the Privacy Act 1993.

Principle 3

Principle 3 provides that, where an agency collects personal information directly from an individual, it should ensure the individual is aware of, among other things, the purpose of the collection, and the intended recipients.

The agent relied on the listing clause referred to above and argued that the woman had accepted that sale details were commonly included in leaflets distributed locally. The woman said she did not know her name and address would be included in the leaflet and that it would be circulated in her neighbourhood and other suburbs.

I consulted the Real Estate Institute of New Zealand (REINZ) about industry practice. REINZ advised that, before printing a leaflet advertising the sale of property, it would be usual to speak directly to the vendor and explain what details would be included in the leaflet. REINZ thought that it would be highly inadvisable to circulate a leaflet naming a vendor still living in a house. Further, REINZ stated that the 'standard' listing authority should not be read so widely as to include reference to publicising the real estate agent and marketing of the real estate agency's brand. REINZ did not seem to think the standard listing authority, relied on by the real estate agent, clearly stated the agent's purpose.

I formed the view that while a vendor may well know that certain information would be disclosed to potential purchasers and other agents, a vendor would not necessarily be aware of an agent's intention to disclose and distribute personal information in a leaflet. I noted the listing authority did not specifically refer to this practice.

I was also of the view that vendors, having entered a private treaty with the real estate agent, would be likely to consider that much of the detail surrounding the sale of the property would be known only to the parties concerned, particularly prior to settlement.

In my opinion, the real estate agent was in breach of principle 3 by not ensuring that the woman was made aware of how the information would be used.

Principle 11

I looked at whether there was a breach of principle 11. An agency may disclose information if it considers, on reasonable grounds, that disclosure is one of the purposes in connection with which the information was obtained, or is a directly related purpose.

From my investigation, I was satisfied the real estate agent had a practice of sending out self-publicising leaflets following a sale, and that one of the purposes in collecting the information was to market the agent's 'brand' or 'name' in this way. I did not find a breach of principle 11.

Harm

Although I considered there had been a breach of principle 3, I had to be satisfied that the real estate agent's actions had led the woman to suffer certain adverse consequences before I could find an interference with her privacy under section 66 of the Act.

The woman said that because of family circumstances, the disclosure by the real estate agent caused anxiety and distress to her son and herself. I thought that the stress, anxiety and fear the woman felt could be attributed to her family circumstances, rather than to the real estate agent's failure to make her aware of the proposed disclosure. There was no causative link between the disclosure and the family situation. The woman did not provide me with any information to show that a third party had learned anything more than the fact that her property had been sold. I formed the view that the requirements of section 66 had not been satisfied, and that there was no interference with her privacy.

The agency indicated that it would, in future, check any proposed leaflet wording with the vendor concerned prior to sending out publicity.

February 2003

Indexing terms: Collection of personal information - Real estate agent - Publicity leaflet included vendor's name, address and sale details - Purpose not clearly stated - Privacy Act 1993, s 66 - Information privacy principle 3

Disclosure of personal information - Real estate agent - Publicity leaflet included vendor's name, address and sale details - Related purpose - Information privacy principle 11