SEC ‘Likes’ Public Company Disclosures on Facebook and Other Social Media

by Ifrah PLLC
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Last December, we wrote about the U. S. Securities and Exchange Commission’s issuance of so-called “Wells” notices indicating that the agency was considering whether to bring enforcement proceedings against Netflix and its CEO, Reed Hastings. The SEC’s ire was aroused by a posting by Hastings on his personal Facebook page about Netflix’s success. The agency was concerned about whether such statements in social media complied with disclosure requirements known as “Regulation Fair Disclosure” or “Reg FD.”

In general, Reg FD requires that, when an issuer discloses material, nonpublic information to certain individuals or entities – generally, securities market professionals such as stock analysts or holders of the issuer’s securities who may well trade on the basis of the information – the issuer must make public disclosure of that information. The purpose of these restrictions is to prevent issuer companies from disclosing material information preferentially to certain traders or securities market professionals.

On April 2, 2013, the SEC issued a report that made clear that companies that use social media outlets like Facebook and Twitter to announce key information are in compliance with Reg FD so long as investors have been alerted about which social media will be used to disseminate such information. In approving the use of social media (with the stated proviso), the SEC reinforced that Reg FD applies to the use of what it characterized as “emerging means of communication” the same way that it applies to company websites, and referenced the SEC’s 2008 guidance regarding the use of websites.

The SEC’s conclusion should be no surprise. On the one hand, it reinforces the widely recognized and increasing use of social media as a source of information by a growing segment of the population. On the other hand, it serves as a reminder to companies that they need to make sure that all investors know and have access to the channels that the companies use to issue important information.

The likelihood, for now, is that companies will continue to use a variety of means to issue information to the public – including social media, websites and more old-school methods such as press releases. But the acceptance of social media as an appropriate means of disclosure for publicly owned companies is an important step forward in the evolution of social media from a means of friendly banter to an important information channel for businesses and investors alike.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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