Financial Services Social Media: Some Guidelines

Given the highly regulated environment in which financial firms operate, it is little wonder that few such firms have undertaken full-blown social media programs. Most firms have opted to take “baby steps” in dealing with the brave new world wrought by social media. However, the adoption of financial services social media may accelerate as FINRA released its long-awaited update on its usage. Some of the highlights include the fact that broker-dealers don’t have to track every message sent through social media -- only ones that relate to business purposes. Unscripted interactions can be reported after they occur. Whether this will trigger an upsurge in financial services social media remains to be seen. In guidance published on its website, FINRA offered fresh guidance about the approvals financial services need before communicating with potential or existing customers on social media sites or via Twitter. The guidance expands on a previously-issued regulatory notice from FINRA. The key message: brokerages have supervisory and recordkeeping obligations based on the content of the communications - whether it is business related - and not the media. For those about to embark on a financial services social media campaign be advised that broker-dealers must track and supervise messages that deal with business, most specifically. However, companies also must have systems in place to supervise and retain interactions with customers, if they are made through personal mobile devices. Be aware also that when undertaking a financial services social media program that a broker who mentions his or her employer on a site such as LinkedIn must also get-approval from the firm. Broker-dealers don’t need preapprovals for so-called “unscripted interactions’ or instant messages but must alert their supervisors after the fact. Before undertaking a financial services social media campaign, firms are advised to fully review the FINRA advisory. We note three key questions below and include the answers provided by FINRA: What if the employee is on his or her own machine?rnDoes determining whether a communication is subject to the recordkeeping requirements of Securities and Exchange Commission Rule 17a-4(b)(4) depend on whether an associated person uses a personal device or technology to make the communication? Answer: SEA Rule 17a-4(b)4 requires a firm to retain records of communications that relate to its “business as such.” Whether a particular communication is related to the business of the firm depends upon the facts and circumstances. This analysis does not depend on the type of device or technology used to transmit the communication, not does it depend upon whether it is a firm-used or personal device of the individual; rather, the content of the communication is determinative. Must business messages be pre-approved?rnMust material changes to static content posted by a firm or its associated persons on a social media site that contains business communications receive prior approval by a registered principal? Answer: NASD Rule 2210(1)(b) require a registered principal to approve each advertisement and item of sales literature before the earlier of its use or filing with FINRA’s Advertising Regulation Department. Firms are expected to adopt procedures requiring prior registered principal approval of any advertisement or sales literature that has been materially changed, even if it had been previously approved in an earlier version. Can employees use personal devices to deal with company business?rnMay associated persons use personal communication devices and other equipment, such as smart phone or tablet computer, to access firm business? Answer: Yes. Firms may permit their associated persons to use any personal communication device, whether it is owned by the associated person or the firm, for business communications. In order to ensure that the business communications are readily retrievable without necessitating the capture of personal communications made on the same device, firms should have the ability to separate business and personal communications. This may mean requiring that the associated person use a separately identifiable application on the device for their business communications. Of course, when considering a financial services social media program it is best to do so in conjunction with the firm’s compliance officers and legal counsel. Refresher classes / seminars should be offered regularly to avoid running afoul of the regulations.