Social Media & Compliance

Social Media & ComplianceHow to tweet, pin, post, update, and connect without a visit from your friendly neighborhood government regulator Matt Kelly, Compliance Week Howard Sklar, Recommind

Social Media & ComplianceWho are these guys? Howard Sklar • Senior counsel, Recommind • Former anti-corruption counsel, Hewlett-Packard Co. • Former vice president of compliance & global anti-corruption leader at American Express • Former SEC prosecutor • @HowardMSklar Matt Kelly • Editor & publisher, Compliance Week • Long-time writer on business, technology issues • @ComplianceWeek

Social Media & ComplianceCompliance rules for social media today Guidance from regulators is limited • FINRA, regulating broker-dealers (Rules 2210(b) and 3010) • National Futures Association Rule 2-9 and Rule 2-36 • NLRB review of disciplinary cases, September 2011 Absent specific guidance... • Assume regulators will treat social media the same way they treat other electronic communications • Think about how your product is regulated, and by whom; FDA, FTC, etc.

Social Media & ComplianceShould I have a social media policy? YES. Compliance Week survey of 120 large companies found that 100 percent now have a social media policy.What it should say: •Do warn employees their posting may be subject to oversight; •Do specify preservation or review requirements; •Do not simply say, ‘Don’t do it;’ •Avoidnaming specific social media services; more will come in the future. (Remember Pinterest in 2011? Neither do we.)

Social Media & ComplianceHow can I enforce a policy? • Include references to social media in any existing policy about electronic communications • What are your standard procedures for monitoring employee communications? (How often, how vigorously, etc.) • Consider outside vendors that monitor social media sites • Can you impose controls that automatically block inappropriate social media posts? • You cannot enforce ‘protected concerted activity’ under Sec. 7, National Labor Relations Act; isolated gripes, you can

Social Media & ComplianceWhat are my risks around what others say? - Are these people tweeting for the company? •Can it be construed as endorsement or advertising? • ‘This is great!’ risk. • Are any required disclaimers included? - Facebook risk •What are you liking, and why?

Social Media & ComplianceHow much enforcement are we talking about? • NLRB taking the lead, enforcing against companies for improper discipline of employees • At least 125 cases now pending before NLRB • FTC’s notable actions so far are against social media sites themselves (Twitter 2010; Facebook 2011) over privacy of user data

Social Media & ComplianceReview & conclusions • Don’t assume that informality of social media means it’s less risky or regulators are more lenient • Treat social media like other forms of communication • Having a policy is not enough; enforce it • Nobody knows how to deal with this yet • How you discipline employees can be just as risky as what they’re tweeting

Social Media & ComplianceThank you! Questions welcome. Howard Sklar Senior Counsel Recommind howard.sklar@recommind.com Matt Kelly Editor & Publisher Compliance Week mkelly@complianceweek.com

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Social Media & Compliance

by mkelly1971 on Jun 14, 2012

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