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Social media compliance updates from the 2014 FINRA Advertising Regulation Conference

Earlier this month, Hearsay Social participated in FINRA’s Advertising Regulation Conference in Washington DC, where we heard regulatory updates, rule clarifications, and practical guidance on social media compliance from FINRA and industry experts.

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The Hearsay Social team at the 2014 FINRA Advertising Regulation Conference.

Once again, social media compliance took center stage as FINRA dedicated two sessions to highlighting the adoption of social media in the financial services industry and the evolution of social media regulation.

At the panel on “Social Media, Digital Communications and Compliance,” the packed audience was eager to hear from Joseph Price (SVP & Counsel, FINRA Corp Financing & Advertising), Amy Sochard (Sr. Director, FINRA Advertising Regulation), Shayna Beck (Senior Manager, Corporate Communications, Vanguard), and Ted Newton (Assistant VP, Advertising Review, MassMutual).

FINRA AdReg panel
Amy Sochard, Ted Newton, Shayna Beck, & Joe Price talk social media compliance at FINRA’s Advertising Regulation Conference.

Some of the key topics and takeaways included:

Interactive vs. static content

FINRA recognizes that not all communications with customers require pre-approval.  Only content categorized as “static” requires pre-approval, as opposed to “interactive” communications, which should be monitored for compliance. In the session, FINRA addressed some of the confusion around what is defined as interactive content. FINRA explicitly stated that content published in a way that allows for other users to comment on, reuse, or “like” to be considered as interactive content.

Key takeaway: If a social media post allows for an “action” to be taken by another user, then firms only need to monitor such content.

LinkedIn endorsements

LinkedIn endorsements and recommendations can be problematic for Registered Investment Advisors (RIAs) under the “Testimonial Rule” of the Advisors Act. FINRA rules do not prohibit “testimonials” provided that such recommendations/endorsements are presented with the appropriate disclosures, such as “past performance are not indications of future performance.” In the session, Ted Newton of MassMutual stated that they allow for their financial representatives to list their skills on LinkedIn as long as they are pre-approved by a principal.

Key takeaway: RIAs should refrain from listing their skills on LinkedIn and they should not allow recommendations on their profiles. Insurance agents and broker dealers that are not registered under the Investment Advisors Act have more leeway to publish skills and recommendations, provided that their principal has pre-approved the content and that it is published with the appropriate disclosures.

Mobile

Mobile use of social media is increasingly common, therefore firms should ensure they are addressing this use case. The biggest concern discussed in this session was that the way content is displayed may vary depending on the device. For example, the same social media content viewed on a smartphone might not be truncated or displayed differently in comparison to how it displays through a laptop browser.

Key takeaway: Your social media compliance solution should have a seamless process for ensuring that all social media posts are compliant with FINRA requirements across devices.

FINRA social media sweep

In this session, FINRA shared some results and learnings of the “social media sweep” conducted this past summer. Most firms reviewed were quite conservative in their use of social media but there were still some gaps in supervision and record-keeping. One important learning for firms that did have larger programs and middleware solutions to address compliance was that FINRA had a hard time reviewing and interpreting activity across multiple different data sources.

Key takeaway: Not only do firms need to keep records of social media activity, but records of posts or comments should also be easy to review in the context of the social activity.  

Overall, it’s great to be a part of the continued discussion over social media compliance, but it’s clear that firms still have a lot more opportunity to embrace this channel.

FINRA AdReg poll
Poll conducted in real-time at the 2014 FINRA Advertising Regulation Conference.

Based on a poll of the audience hosted by FINRA at the event, the majority of participants still report the clarity of regulations as the the biggest challenge to firms in adopting social media. Hopefully the clarifications from this session help firms get one step closer to adopting social media.

We have been working with insurance and financial services firms for almost five years, but we’ve still only seen the tip of the iceberg that is the opportunity for financial professionals on social media. More confidence in interpretation of the regulations should help firms move forward.

New SEC guidance on testimonials for financial advisers on third-party social media sites

shutterstock_179555099_smallOn March 28, the U.S. Securities and Exchange Commission (SEC) released new guidance (IM Guidance No.  2014-4) clarifying how the testimonial rule should be interpreted with social media. This guidance provides financial advisers with more leniency for use of client commentary that appears on independent third-party social media websites.
The SEC made clear that as long as client reviews appear on independent social media or review sites, and that the adviser has no ability to affect which public commentary is included or how the commentary is presented, then the mere reference to such commentary does not violate the rule on testimonials.
For example, it is permissible for an adviser to link from their social media page to reviews on public sites like Yelp or Angie’s List. The third-party site, however, must allow the public to see all commentary about  the adviser–both good and bad–and such commentary should not be filtered in favor of the adviser. To the right is an example of such a Yelp page, which contains unsolicited public reviews on an adviser.
It remains the same that advisers should have no influence on the third-party commentary. This guidance clarifies that commentary should not be displayed on social pages or profiles that could be curated by the adviser. For example, an adviser should not accept reviews from clients on a Facebook page that the adviser owns, because in that case they would be able to control the content.
This guidance also clarifies how the SEC considers non-investment related content in advertisements. In contrast to prior interpretations, this makes clear that non-investment related commentary in an advertisement, such as comments on religious affiliation or community involvement, can not be considered a violation of the rule 206(4)-1(a)(1).
The SEC also addresses client-lists in relation to social media friends or fans. According to the guidance, it should not be clear from an adviser’s social media page or profile who are clients and who are friends/other connections. For example, they should not have a Twitter list called “clients.” And, the social property should not imply that the contacts/friends have experienced favorable results from the adviser’s services.
Although this guidance provides clarity for advisers’ use of third-party commentary on their social media sites, some firms elect to continue to require all content on social media to be pre-approved before it is published. With this guidance, you should adjust your policies and procedures based on your own risk tolerance. You can read specific advice for addressing the testimonial rule across social media sites here.
The complete guidance from the SEC is visible on their website here.
Learn more:

Disclaimer: The material available in this article is for informational purposes only and not for the purpose of providing legal advice. We make no guarantees on the accuracy of information provided herein.

Social media compliance: What investment advisors need to know

Ed. note: The following post, authored by Yasmin Zarabi  (vice president, legal & compliance, Hearsay Social), originally appeared in Financial Planning.

FinancialPlanning_logoAs social media grows increasingly popular among RIAs, there are still questions regarding testimonials, endorsements and recommendations on social sites. The SEC’s recent guidance allowed for certain use of third-party commentary on social media that would not violate the “testimonial rule.”

Here’s what investment advisors need to know now.

Underlying rule

Since the 1940s, the SEC has forbidden RIAs from promoting client endorsements or testimonials in anything that constitutes an “advertisement.” Rule 206(4)-1 under the SEC Investment Advisers Act of 1940 prohibits an RIA from publishing, circulating or distributing any advertisement which refers — directly or indirectly — to any testimonial of any kind concerning the RIA or any advice, analysis, report or other service rendered by the investment advisor.
But in the digital age, clients can effortlessly use social media to endorse and recommend their advisors with just a few clicks. The SEC has issued a couple of clarifications related to social media. Back in January 2012, it published a National Examination Risk Alert on Investment Adviser Use of Social Media, outlining its concerns about RIAs’ use of social media and describing how clients can provide recommendations and endorsements. More recently, in March 2014, the SEC issued Guidance No. 2014-4 — Guidance on the Testimonial Rule and Social Media — providing further clarity on investment’s advisors’ use of third party commentary on social media.
How could a third-party comment or social media “action” be viewed as a “testimonial” on social media and therefore prohibited? One thing is clear: In its guidance, the SEC says an investment advisor should not invite its clients to post commentary directly on the investment advisor’s own social media site or page.

But what uses of third-party commentary would be permissible by the testimonial rule?

mzl.hcndxsjsLinkedIn recommendations & endorsements

LinkedIn endorsements and independent recommendations about the advisor’s skills should be avoided. An endorsement can occur in two ways: A client could endorse an advisor for a skill that is already listed on his or her profile or a client could initiate an endorsement for a new skill that does not already appear on the advisor’s profile.
To avoid the first scenario, advisors should select “No” for the “I want to be endorsed” feature under the “Skills and Expertise” section on their LinkedIn profile to turn off the feature that allows clients (other LinkedIn users) to “endorse” their skills. In addition, if a connection attempts to add a new skill to the advisor’s profile, the advisor should reject the endorsement to avoid violating the testimonial rule under the Advisers Act.
Recommendations on LinkedIn are completely separate from endorsements. They are free-form written opinions of one’s professional skills, accomplishments or experience. A client can choose to recommend an advisor or an advisor could request such a recommendation.
If advisors receive unsolicited recommendations, they have the ability to review and approve the recommendation before it appears publicly on their profile. Advisors should not accept or request any recommendations on LinkedIn. Advisors may also want to add a preemptive note to the Summary section of their profiles to say up front that they will not accept recommendations or endorsements.

Tweets

Advisors should avoid retweeting any tweet from either a securities research analyst or a client who is providing a testimonial about the advisor’s performance or a product or service of its firm.

LikeSocial media “likes”

Many firms also worry about the interpretation of a like on Facebook or LinkedIn, or having viewers choose to “favorite” a tweet. Likes can mean many things: For example, a like from a third party may simply indicate that a visitor enjoyed an article that was shared or appreciates the artwork on a page.
Much depends on context: The 2012 SEC Risk Alert was careful to state that interpretation of a like as a testimonial is based on the facts and circumstances. A like that an advisor solicits as an indication of a client’s experience with the firm may be construed as a testimonial. However, a like on a photo of an advisor’s new baby may not.

Links to third-party sites

The March 2014 SEC guidance also clarifies how advisors can use third-party commentary on social media. According to the guidance, advisors should not link to commentary on a third-party social media site unless they can demonstrate all three of these:

  • That the advisor has no ability to affect which public commentary is included or how the commentary is presented on the independent social media site.
  • That the commentator’s ability to comment is not restricted.
  • That all comments, both good and bad, can be viewed publicly.

Takeaway: rules for advisors

Financial regulations only prohibit the use of testimonials or endorsements that are related to financial services and the ability to manage money. But advisors can avoid violations of the testimonial rule by following these guidelines:

  • Do not list any skills on your LinkedIn profile.
  • Turn the LinkedIn endorsements feature off.
  • Do not accept any LinkedIn endorsements initiated by a third party.
  • Include a disclaimer on your LinkedIn profile instructing third parties not to endorse.
  • Only share links to independent third-party social media sites on which you have no influence on the third-party commentary and you are not materially entangled with the third-party social media site.
  • Do not cherry-pick favorable client testimonials or endorsements  on your social media pages or any advertisement. If you allow testimonials, you have to show the good and the bad commentary, and not just the favorable comments.

In general, advisors should avoid soliciting client feedback in a way that may frame a Facebook like or a third-party post as a testimonial.
And as a best practice to limit their risks, advisors should prominently display language on their LinkedIn and Facebook profiles indicating that they (and their firms) are not responsible for and do not encourage third parties to post anything on their behalf.
Given that the financial regulations relating to social media are relatively new, and social media platforms continue to evolve in their uses and the ability to effect controls, firms should consider the guidance in light of their organization’s policies for their advisors.

Disclaimer: The material available in this article is for informational purposes only and not for the purpose of providing legal advice. We make no guarantees on the accuracy of information provided herein.