Social Media Compliance Policies For Financial Firms

The following is a guest blog post from Jeffrey E. Kopiwoda and Seth A. Stern with the law firm Funkhouser Vegosen Liebman & Dunn Ltd.


 

Develop A Clear Social Media Policy

Social media offers significant opportunities for financial firms but also poses commensurate risk to firms that are unaware of legal issues affecting the medium. Financial regulators so far have shown little willingness to adapt to the instantaneous sharing of information.  Social media – which thrives on real-time communication – is therefore subject to rules designed for traditional media.  Firms should implement clearly worded policies to ensure their employees do not unknowingly draw regulatory action.

For instance, the NFA requires podcasts and YouTube videos to go through the same ten-day approval process applicable to television and radio ads under Rule 2-29(h).  Further, regulators including the NFA and FINRA will treat tweets qualifying as promotional or advertising materials the same as formal reports.  Even “liking” someone’s post on Facebook arguably could be considered a regulated endorsement. Firms should not assume that social media will be treated leniently due to its informality.

Know The Rules

Regulated entities’ social media activities (like their offline activities) must comply with rules including:

  • NFA Rule 2-9, which requires Members to diligently supervise employees in the conduct of their activities on behalf of the Member (including social media posts).
  • NFA Rule 2-29 and 2-36, which prohibit fraudulent and misleading communications and include numerous specific requirements for “promotional materials” and other categories of communications, including mandatory disclaimers which are not particularly Twitter-friendly.
  • NASD (now FINRA) Rules 2210(b) and 3010, requiring advertisements and other correspondence and literature to be approved in writing by a principal.  Social media sites, blogs, and bulletins (both corporate and individual) must be reviewed prior to their launch and “static” content qualifying as advertisements also must be reviewed in advance.  Content qualifying as a “public appearance” (including chat-rooms and comments to others’ social media sites and blogs) also requires supervision.

Keep Accurate Records, Supervise Diligently

Record-keeping and archiving requirements also apply to social media.  NASD Rules require firms to retain all advertisements and business communications – including information posted on websites and social media posts.  This includes communications sent from smartphones and other devices.  NFA Rules also require Members to maintain promotional materials.  A proposed amendment to CFTC Rule 1.35(a) would require regulated entities to record all communications which lead to the execution of transactions and categorize them by counterparty and transaction.  This would include “digital or electronic media” communications.

Moreover, Firms’ supervision requirements extend beyond their own employees.  You may have heard that website hosts are not liable for third-party content such as comments on blogs and wall posts.  While this is true for most online publishers under federal law, the NFA has issued guidance to the contrary.  According to NFA Interpretive Notice 9063, a Member or Associate must “regularly monitor the content of the sites it hosts, take down any misleading or otherwise fraudulent posts, and ban users for egregious or repeat violations.”  The more successful a site becomes the more it attracts third-party content that must be monitored. Unfortunately, smaller firms without compliance departments may find it difficult to regularly monitor content.

Adopt, Update, Enforce

All firms using social media should adopt, update, and enforce policies governing social media use.  Regulators will want to see such policies, as well as proof that they are enforced, in the event of an audit or investigation.  Firm policies should cover both the firm’s own online activities and employees’ independent activities.  The NFA suggests that policies require employees to notify their employer of any participation in online financial or trading forums and provide screen names so employers can monitor their posts (though employers should be cautious of privacy concerns when doing so).  Polices should make clear that a firm’s procedures manual applies to online communications.

Handle With Care

While this post focuses on issues specific to financial firms, such firms are subject to the same legal considerations that affect all social media users.  Members of our law firm have written extensively about issues affecting both publishers of social media content and employers of social media users.  Also note the National Labor Relations Board’s recent crackdown on employers who discipline employees for their social media use.  Financial firms may be especially interested in recent cases involving the “hot news doctrine.”  A federal appellate court held that a website was within its right to republish, virtually instantaneously, analyst reports banks published for paying clients because the banks’ reports constituted news of interest to the public.  Firms may want to limit how much they share via social media even where they believe content is accessible only to “friends,” “followers” or password-holders.

When In Doubt, Consult With Counsel

This post is by no means an exhaustive list of all regulations and legal issues facing financial firms utilizing social media, and the law will continue to evolve with new technologies and as regulators enact rules to comply with the Dodd-Frank Act.  Regulated firms and individuals should consult with counsel to determine which regulations apply to them and what policies are appropriate given their circumstances.

Jeff Kopiwoda () and Seth Stern () are attorneys with the firm Funkhouser Vegosen Liebman & Dunn Ltd. (FVLD).  They and other FVLD attorneys regularly counsel clients in the financial services industry and elsewhere regarding social media and numerous other compliance issues.  This article is merely informational and does not constitute legal advice.

Is Klout Inversely Related to Real Influence?

Getting serious about social media

A few months ago, PropelGrowth got more serious about how we were using Twitter. We committed to tweeting daily, we set up a strategy for what to tweet, how often, and how to engage. As we worked on it, we found our Klout scores slowly rising.

Klout became my virtual report card

While I’ve never been convinced that Klout is actually worth watching, I found myself checking it daily, as if it were a report card on my social efforts. During the month of August and the first week of September, my score gradually rose to a 47. Not much compared to some of you influencers out there, but a nice jump from where I started.

As live interactions and influence increased, Klout decreased

But then I started getting really busy. I traveled to speak at a conference in Chicago and to meet with clients in Connecticut, I’m involved in planning several capital markets industry events, which is taking a lot of phone and meeting time. We’ve got quite a bit of new business demand, requiring me to spend more time working with clients to devise their strategy, prepare proposals, develop thought leadership programs, refine messaging, plan events, and oversee content development.

So as my in-person influence increased, my Twitter activity naturally took a hit. The week I went to Chicago, where I was having a lot of real influence, my Klout score fell 12 points.

A social media mistake

Then I read an interesting blog post on the {Grow} blog about a big social media mistake. As I considered the points Stanford made in his blog post, I thought about the fact that most of my Twitter following is made up of social media, marketing, and sales training people. Not my target market. No offense intended to these wonderful people, but my business depends upon my influence with a Capital Markets audience.

Is Klout inversely related to real influence?

My goal is to communicate with the thought leaders in financial technology companies, broker-dealers, exchanges, asset managers and the like. These people are connected to me on LinkedIn and through professional organizations and client relationships, but most of them are not following me on Twitter. So I ask you, could Klout actually be a scorecard of how much I’m NOT influencing my target market? If my Klout score is going up, is it because I’m interacting a great deal on Twitter, but not spending enough time on the phone or in meetings with clients and prospects where I have the greatest influence? So as my Klout score goes up, is my real influence declining?

What say you?

Are you a big believer in Klout? Do you agree or disagree with my premise?

Using Social Media to Find New Clients

I recently came across a series of posts at the InvestmentPal Blog that have some compelling statistics.

InvestmentPal cites a HubSpot survey which found that financial services companies using social media were most likely to acquire customers through LinkedIn and their blog, with Twitter placing third and Facebook a distant fourth. Other interesting stats from that HubSpot survey include:

Companies who have acquired customers from their blog:

  • 47% of all companies blogging
  • 72% of companies that blog at least once a week

Financial services companies who have acquired customers through social media channels:

  • LinkedIn: 61%
  • Twitter: 40%
  • Facebook: 35%

The results are compelling. But what they don’t discuss is the strategies and techniques that these companies employ. Remember, social media is merely a communication vehicle, not a strategy in itself. Giving social media the credit for winning business is sort of like giving the telephone credit. It’s not the technology, it’s the content that wins business.

I’d love to see a survey that drills into the content strategies of these firms to determine what works and what does not. For example, we often see companies use Twitter, LinkedIn or their blogs to broadcast general company information like press releases without providing any educational content. Then, when their broadcast strategy doesn’t deliver results, they claim that social media doesn’t work. Companies who strictly deliver promotional material on their blog will see much poorer results than companies who share helpful educational content targeted to their specific audience.

The (Social) Medium is the Methodology

There was a thread in the Social Media Marketers discussion group on LinkedIn that recently caught my attention:

Do you agree or disagree with this statement? Social Media is A tool not THE tool in one’s marketing mix.

What caused me to respond was the notion of social media as a tool. The term itself causes a certain amount of misunderstanding that tends to distort the conversation. The definition of a tool can be open to more than one interpretation. Also, some think of social media as specific sites such as Facebook and Twitter. Others see it as a collection of technologies. Still others see it as simply the act of engaging socially in the ether. Even the term “social web” can be somewhat problematic. The web (which has come to include the mobile web) has very quickly evolved to become a social experience.

I recently attended the Focus Interactive Summit which spotlighted the current state of social media strategies. It was a mix of virtual presentations, chat and threaded discussion (as well as the obligatory sponsor plugs and iPad raffle for answering a questionnaire). One of the presenters, Chris Heuer of Deloitte had a very incisive perspective. He stated that social media is not so much technology as much as it is methodology. When you think about it, Twitter has morphed from a vanity model (“Just finished eating pancakes for breakfast”) to one of sharing information (“You might find this article by Jane Doe interesting”). As I stated in my LinkedIn response, it’s the synergy of online interaction and collaboration that fuel the social media experience.

From a B2B marketing perspective, social media as a methodology makes plenty of sense. As the new sales and marketing models coalesce, the way we do business is changing on an almost daily basis. What has become the real game changer is the customer-centric nature of the new paradigm. We’re swiftly moving away from “what can I sell you?” and moving toward “how can I help you?” From the latter perspective, marketers become focused more on providing value by meeting the customer’s business need. This also includes responding to the unique personalities and emotional makeup of individuals. As a result, we’re challenged with developing new methods of reaching with relevance, which becomes about the resulting content and how we deliver it.

At the same Focus event, Deborah Schultz of Altimeter Group declared that social media is not a channel, but rather an experience. Many tend to think of as a separate entity. In a solutions-based business world, social media is a step in the problem solving process. If the new marketing is about a shift in attitude and behavior, then social media (or electronic social engagement) is part of that new behavior. The combination of human interaction and the nature of current technology characterizes the social marketing process. The underlying technologies have transformed the way we engage with one another. As we adapt, we alter the tools slightly to reach our shared objectives. Electronically mediated interaction affects us by causing us to learn while participating. We provide content to customers. Based on their feedback (through digital observation and personal interaction), we respond with more relevant content. In various discussion groups, we interact with our colleagues to exchange knowledge. We are at the same time student and teacher. The engagement with customers and colleagues through various online experiences becomes what we now call social media.

As time goes by, technologies and terms will either fade away or evolve into something more identifiable. What will remain is the need for building relationships and providing value. At least that’s what we’ll want the internet archeologists to say.

What’s your take on social media? Comment below and let me know.

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