As social media platforms continue to grow – and as is common, technological change outpaces regulators – the SEC has struggled (many suggest “lagged” might be more appropriate!) in its guidance regarding the advisor use of social media. While the core of the SEC’s rules still ultimately boil down to: “Don’t say anything on social media that would get you in trouble if you said it in any other public forum as well” the ambiguity regarding how these rules intersect with certain social media platforms has left many advisors (and their chief compliance officers!) confused and worried.
In a just-released update to its social media guidance, the SEC has provided some new rules and clarifications, especially regarding the potential use of third party “advisor review” sites, and also whether it’s a testimonial violation to have (or participate in) a “community” or “fan” page, to have a public display of people you’re connected to on social media channels (and whether it’s an implied endorsement that you may be friends/followed by some of your clients), and whether it’s permissible to direct clients to the advisor’s social media pages to receive updates in the first place.
In general, the “new” rules are not surprising, follow a logical path to determining whether certain social media actions could constitute testimonials (e.g., the mere fact that clients happen to be connected/following/friending you is not deemed a testimonial), and unfortunately still do not address certain vagaries (e.g., are LinkedIn “endorsements” a violation of the testimonial rule or not?). Notably, though, the SEC’s guidance was especially thorough regarding third-party “advisor review” sites and how such platforms can be administered safely without running afoul of the testimonial rules… in the process, potentially giving a green light to platforms ranging from Yelp to more advisor-specific review sites in the future!