By Lorie Konish
June 20, 2012 When a financial advisor takes to Twitter to update their customers on what they had for lunch, is that a so-called required record that must be saved and archived by the financial services firm that employs them?
How the answer to that question continues to take shape going forward will determine just how rigorous firms need to be in archiving social media communication. Social media record keeping may become a larger challenge for firms as they keep pace with regulatory rules, Bank of America Merrill Lynch executive Douglas G. Preston said Wednesday at the Securities Industry and Financial Markets Association’s Social Media Seminar in New York.
“Right now, everyone is taking the view that everything is business,” said Preston, who serves as senior vice president and head of regulatory affairs, global banking and markets at BofA Merrill Lynch. That includes updates like what a financial advisor had for lunch to followers including customers.
But as financial advisors expand their use of social media, the amount of records that the firms that employ them need to keep grows. Keeping a large amount of data is not a problem, Preston said, until the Securities and Exchange Commission requests for those records to be retrieved within a certain amount of time.
“Record keeping is going to be one of those issues that we can see on the horizon that could pose big problems,” Preston said.
The issue of how to keep records of social media interactions is one issue that firms will face as financial advisors broaden their participation in these platforms. That could mean turning to a third-party technology vendor or hiring professionals such as law firm associates to comb through records, Barbara Stenner, partner at Allen & Overy, said. Either way, staying compliant will cost the firms money.
“FINRA doesn’t have a dog in this fight,” Joseph E. Price, vice president of advertising regulation and corporate finance at FINRA, said. “If social media doesn’t make sense for your business model, and the compliance cost and burden don’t make sense for you, that’s fine. I think we more care about those that are going to use it.”
FINRA was one of the regulators to discuss on Wednesday what guidance it has provided to firms regarding limits on the use of social media communication. That includes definitions on adoption, entanglement and static content. The notices FINRA has issued so far have been deliberately vague, according to Price.
“We haven’t been as clear as some may have liked about that,” Price said. “We feel that we need to be a little general so that you are able to apply those concepts flexibly.”
The independent regulator, which promised two notices on social media in two years, may or may not issue another one this year, Price said. The two areas that FINRA consistently gets the most questions about involve record keeping, particularly on content such as videos and hyperlinks to videos, as well as how responsible firms are for the personal sites of their advisors. Firms should stay on top of those personal sites for red flags, Price said.
Overall, firms need to make sure that the procedures that they use stay consistent, said Julie M. Riewe, deputy chief of the asset management unit at the SEC. That includes third party postings on a firm’s site. Firms should resist the temptation to delete negative posts, while just featuring positive commentary, according to Riewe.
“The key is to have the policy, make sure it’s reasonable and then follow it,” Riewe said.