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Addressing the Regulatory and eDiscovery Challenges of Social Media

Created: 18 Aug 2011 • 1 comment
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Is your organization among those that have jumped with both feet into the world of social media?

Recent survey results confirm that social media use is on the rise for almost all organizations across the globe.  This is particularly the case in the financial services industry.  A recent industry survey confirms that nearly two-thirds of all asset managers are actively using social media for marketing purposes.

Despite its increasing popularity and ubiquity, the securities industry is experiencing growing pains with social media.  Just like other industries, financial services providers are struggling with applying notions of information governance to these non-traditional forms of communication.  Indeed, with social media becoming an increasingly important data source for both business and legal purposes, it behooves enterprises to develop an information governance strategy with respect to this data.  The best practices being followed in this regard by financial services companies should be paradigmatic for organizations across the board.

Social Media Challenges for Financial Services Companies

Many financial services companies are experiencing difficulty supervising or retaining social media communications as required by FINRA Regulatory Notice 10-06.  A landmark regulation, FINRA 10-06 was promulgated last year to protect investors from false or misleading claims made on social networking sites.  To comply with this regulation, securities firms must develop protocols that enable them to supervise and retain social media content and ensure conformity by their representatives.

It is no secret that social media communications continue to bedevil securities firms.  Indeed, 63% of surveyed asset managers reported that “regulatory recordkeeping” remains their greatest challenge with respect to social media.  And as more firms move toward social media marketing, the number of financial services companies experiencing difficulty with retention is also likely to increase.

The challenges firms are experiencing with social media are not limited to retention.  They also include the need to properly supervise social media communications.  This was acknowledged by FINRA chairman and chief executive Richard Ketchum at an industry event this past June.  Among other social media issues, Ketchum explained that firms have questioned how they can most effectively supervise their employees’ use of smart phones and tablet computers that can access company sites.  In response to these matters, FINRA just issued Regulatory Notice 11-39 to help clarify several lingering questions regarding retention and supervision.

Best Practices for Addressing the Challenges of Social Media

Given the complexity of these issues, regulated enterprises need to know what best practices can be followed to ensure compliance with pertinent FINRA and SEC regulations.  While there are perhaps many steps that could be implemented, three stand out as indispensable for firms.

The first is that firms should develop a global plan for how they will engage in social media marketing.  This initial step is particularly important for groups that are just now exploring the use of social media to communicate with investors.  Having a plan in place that maps out investor contact and communication strategy, provides for required supervision of firm representatives, and accounts for compliance with regulatory requirements is essential for securities firms.  Failing to take these steps could result in fines, suspensions or worse.

The next step involves educating and training employees regarding the firm’s social media plan.  This should include instruction regarding what content may be posted to social networking sites and the internal process for doing so.  Policies that describe the consequences for deviating from the firm’s social media plan should also be clearly delineated.  Those policies should detail the legal repercussions – civil and criminal – for both the employee and the firm for social media missteps.

Third, firms can employ technology to ensure compliance with their social media plan.  Indeed, FINRA 10-06 specifically emphasizes the importance of deploying technological “systems” to facilitate conformity with the regulation’s “Recordkeeping Responsibilities” requirement.  Those “systems” include archiving software and other technology tools.  With the right tools in place, firms can perform a cost-effective supervisory review of content to help ensure compliance with corporate policy and regulatory bodies.  Moreover, an effective “system” will implement legal holds and efficiently retrieve archived social media content in response to legal and regulatory requests.  All of this enables a company to establish the reasonableness of its retention and eDiscovery processes and demonstrate compliance with relevant SEC and FINRA regulations.

By following these steps and other best practices, financial services companies can begin to reasonably address the challenges of social media.  Knowing that those challenges are being dealt with in an effective manner will enable firms to confidently engage in social media marketing - and reap the financial benefits of doing so.

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eDiscovery 2.0's picture

Authored by: e-discovery 2.0 » Blog Archive » The Social Media Rubik’s Cube: FINRA Solved it First, Are Non-Regulated Industries Next?

[...] – not only because they were forced to by regulation, but because they have developed best practices that essentially incorporate social media into their document retention policies and information [...]

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