Autorité des Marchés Financiers (“AMF”), the French regulator for financial markets, has recently updated its rules to clarify its policy on social media usage by asset management companies and debt securities issuers (“Regulated Firms’). The final ruling by AMF follows a recent consultation that was opened up to the public in October 2015, Hearsay Social participated in providing detailed comments to AMF. This ruling is also consistent with the approach taken by other EU regulatory bodies overseeing financial bodies.
Here are four tips for Regulated Firms in France to implement the regulatory requirements:
1. Policy and Training
Since Regulated Firms may be held liable for content that their employees post on social media on the firm’s behalf, Firms should implement a social media policy and train their employees on such policy. Here are key takeaways for a good social media policy:
Social media policies should be written in clear and concise language: A recommended route is to “state the rule” and then provide an illustrative example for the rule (e.g. acceptable tweet v. unacceptable tweet.
The social media policy should clearly define the consequences of breaking the policy, and designate roles and responsibilities within the firm identifying individuals for administering and enforcing the policy.
Each firm should review their policies and procedures on an ongoing basis for their adequacy and the effectiveness as new laws are implemented. Once the policy is laid out, employees should be trained on the policy.
Firms should consider having employees sign an attestation that they read and understand the policy on an annual basis.
2) Distinguishing between personal and business use
Whether a social media post is compliant depends on the content that is being used for professional purposes rather than being used for personal means. The AMF has therefore encouraged Regulated Firms to ensure that Firms have distinguished a separation between personal v. business use of social media. Here are some practical tips for ensuring these requirements are met:
- Distinguish between a firm’s own social media accounts, and accounts for individual officers or employees at the firm. For the firm’s own accounts, there should be a clearly defined policy about who is permitted to post material, and with what level of review (before or after the postings).
- Firms should clearly distinguish between allowing for their advisors to use business-related accounts for work versus their personal accounts. Companies typically bar the individual from discussing business communication on personal accounts.
- Firms should monitor and retain content only on the individual’s business-related accounts or business related posts.
3) Content should be accurate, clear and not misleading
The AMF’s statement also reminded Firms to take appropriate action to ensure that all promotional material has content that is accurate, clear and not misleading. Firms must also take steps to ensure that any promotional materials should be identifiable as being marketing and advertising material, for example by using #pub or #publicité hashtags.
Businesses can apply this rule by having adequate systems in place so that all communications are monitored and supervised, for example, by having legal disclaimers for statements that are promotional in nature.
The rules also require that each business communication must be compliant when read as a collective message or by itself. This rule is similar to the the FCA guidance in UK that requires all social media communication to have “standalone compliance.” This includes content that is shared on Facebook or retweeted on Twitter, even if the employee sharing the information is not the original source of the content.
To reduce this risk of liability, Regulated Firms should consider implementing systems for monitoring their employees business related communications on social media. Here are some practical steps to follow:
- Implement a library of pre-approved content for timely dissemination that has been approved by appropriate people within the firm (e.g. compliance/legal);
- Create an approval system/workflow for approving new or original content created by advisors; and
- Ensure there is an appropriate monitoring system in place that will flag content that is non compliant.
The AMF reminded businesses that they should protect themselves from legal, regulatory and reputation risk by implementing appropriate archiving solutions for all business related communications. Additionally, businesses should adopt a policy and archive its business related communications, whether conducted through public or private messaging means.
Following the release of this guidance, firms operating in France should reevaluate their policies to ensure that their practices remain compliant. Digital channels like social media are a strategic enabler for businesses and adopting such mediums is not just a nice to have. However, the protection of consumers from misinformation and abuse is paramount and regulators’ focus on this is key. AMF’s latest ruling is a step in the right direction in encouraging innovation in the financial services industry while at the same time ensuring investor protection.
AMF’s ruling is in line with guidance released by the UK, U.S. and other countries. In the U.S., which was the first to formalize regulations around new channels like social media, the regulatory bodies (FINRA and SEC) do spot checks at financial firms to ensure compliance. We believe other countries will eventually follow suit and companies that prepare for this future will have a competitive advantage.
The clarifications apply to the following texts:
For asset management companies:
- DOC-2011-24 on drafting CIS marketing materials and distributing CISs; and
- DOC-2012-19 on drafting a programme of operations for asset management companies and self-managed collective investments
For issuers of structured debt securities:
- DOC-2013-13 on drafting marketing materials for the sale of structured debt securities.
If you have any comments or questions, please contact us at EUcompliance@hearsaysocial.com