Historically, financial services firms have not been the most active group in the social media sphere. In a 2011 survey of hedge fund managers conducted by MHP Communications, only 1% of firms were active participants on Twitter, and none of the managers surveyed were active on Facebook. More recently, however, the tides have begun to change. Following Goldman Sachs’ entrance into the Twitterverse in May 2012, investment management firms and their employees have started to increase their social media participation. With this growing trend comes the added layer of social media compliance with industry legislation.
The Legal Perspective of Retaining Social Messages
According to the SEC’s Rule 17a-4(b), registered investment advisers and broker-dealers should archive (think Eze Archiving!) all business communications on social media for a minimum of three years. As the frequency of discovery audits continues to rise, firms should ensure these communications are easily searchable and can be recovered quickly in the event of an SEC inquiry.
Additionally, Section 24(b) of the Investment Company Act of 1940 requires investment firms to file all advertisements or other promotional materials to investors within 10 days of their release. A 2010 update to this regulation issued by FINRA declared that interactive content on social media platforms qualifies as advertising, and therefore falls under Section 24(b). The FINRA update also states that social media content falls under the jurisdiction of Rule 482 which requires firms to file registered investment company performance ads and promotional content.
New Guidance from the SEC
Since these FINRA updates were announced in 2010, little advancement has been made in the regulation of social media correspondence by investment organizations – until about two weeks ago.
On March 15th the SEC issued its first “Guidance Update,” which – according to the Commission’s press release – will be the first in a series of upcoming guidances designed to express its views on emerging technologies and issues. The goal is to “increase transparency and enhance compliance with the federal securities laws and regulations.” And then today, the SEC officially stated that social media is okay for company announcements as long as investors have been alerted about which social media will be used to disseminate such information.
This first SEC Guidance Update addresses the requirement of investment firms to archive content that is posted on real-time social media sites such as Facebook and Twitter. The SEC notes that many firms have been extremely thorough in their compliance efforts, and have been filing nearly all of their social media correspondences (well done, fund managers!) regardless of content or context.
The new Guidance Update indicates that investment companies can now relax this practice somewhat, and need not file ALL social media content. Instead, consider the content, context and presentation of the communications in order to determine whether they are within the jurisdiction of the pertinent SEC rules and regulations. For instance, firms do not need to file social media correspondence that is simply a response to a question or sharing of existing content from another source.
According to the legal experts at Bingham, the following types of online communications are examples of those which do not need to be filed according to the most recent guidance:
Content which only contains incidental mention of the fund’s name
Incidental use of the word “performance”
A factual statement including a hyperlink to a fund prospectus or to information already filed in accordance with SEC regulations
A factual statement not related to a discussion of the investment merits of a fund which includes a hyperlink to general financial information
Responses to another social media user’s inquiry in which “discrete factual information” is conveyed, and/or a hyperlink to sales literature is shared
This new SEC update is a sign that regulators are aware of the importance of social media communication in today’s business world. By clarifying the types of content that do and do not need to be filed, they’re paving the way for more real-time interaction between investment organizations and their online communities.
As your firm moves forward with incorporating social media into its business strategy, it’s important to develop a written social media usage policy to outline acceptable and unacceptable use of social media for employees. This is a highly recommended best practice for managing effective social media campaigns, especially given the uptick in discovery audits administered by the SEC.
Additionally, firms should utilize social media archiving tools such as Eze Archiving to ensure compliance with SEC regulations. As Twitter and Facebook become mainstream platforms for communication in the financial services industry, you’ll want to ensure your firm is always putting its best foot forward on all interactive social media sites.
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