Presentation by Matt Kelly, editor of Compliance Week; and Howard Sklar, senior counsel at Recommind, on crafting intelligent social media policies that pass muster with regulators. Delivered at info360 conference, Javits Center, New York, June 14, 2012.

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

2. Social Media & Compliance
Who 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

3. Social Media & Compliance
Compliance 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.

4. Social Media & Compliance
Should 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.)

5. Social Media & Compliance
How 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

6. Social Media & Compliance
What 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?

7. Social Media & Compliance
How 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

8. Social Media & Compliance
Review & 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

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