Perhaps you’ve heard of this crazy new thing called “Social Media.” Of course you have. Even your grandmother uses Facebook now, right?
We all know by now that what started out as a way to communicate personally and socially has entered our professional lives. We use LinkedIN to find jobs and recruit candidates, we use Twitter to promote our thought leadership and events, we use Facebook to show the world our company culture and Google+ to market our content.
There’s been a lot of commentary
on the headaches that social media have caused for compliance professionals, general counsels and chief legal officers. Compliance Week
had a great article
this week on “Balancing the Power of Social Media with Compliance Risks”. Balance is key: social media can be a powerful tool but that must be balanced against the risks it presents. There are ways to attempt to mitigate the risk that employees will divulge improper information via social media that could damage the company…. And the risk that employees may inadvertently leak client information or company data… and the risk that they could disclose something confidential or legally protected…
You get the picture; there are a lot of risks. Unsurprisingly, compliance organizations have begun to implement social media training and compliance policy certification systems that allow them to ensure that employees read and attest to their social media policies.
Social media training should be specialized and relate back to your company’s social media policy. Your company’s policy should give very clear guidelines employees can understand and apply to their use of social media – nothing long, wordy or full of legalese. Your compliance policy certification system should give your employees a chance to read and attest to the policy they just received social media training on, and a chance to make any necessary disclosures.
However – remember to think about balance – while we’re framing this conversation about risk, companies can’t tighten the controls too much either. A social media policy that is so broad that it requires employees to gain approval, for example, before posting any work-related comments on any social media, basically restricts them from talking about their working conditions, which would violate labor laws.
If you’ve been reading my blogs, you know I love a survey. I came across the results of the 2013 In-House Counsel New Media Engagement Survey which is fascinating for a number of reasons, but what I really gravitated to was the fact that social media use among in-house counsel has reached an all-time high.
So, the legal employees are using social media but what about using social media communication as a form of compliance? We found out this week that while social media is exploding as a communication form in many other respects, the SEC has decided that it will maintain its regulations regarding compliance, record keeping, and anti-fraud, despite the growing use of social media. The article notes that the guidance provided for advertising and promotion — especially in terms of the records kept on the material post through advertising channels — will stay the same regarding the inclusion of entities such online social networks.
A Senior Counsel at the SEC’s Adviser Regulation Office put it this way: “Firms that communicate through social media must retain records of those communications covered by the record-keeping rule. It’s really the content that’s determinative rather than the form of communication used.” In other words, it doesn’t really matter that it’s on social media.
Before you think the SEC should “get with the times,” remember the agency has allowed social media communication as a form of compliance in other areas: last April, the SEC stated that companies can use social media outlets like Facebook and Twitter to announce material information in compliance with Regulation Fair Disclosure, as long as they alert investors about which social media channels they will use to disseminate such information.
As it seems social media is here to stay, I’d advocate companies give employees engaging, interactive social media training and clearly written policies that help them understand how they can use the tool and keep the company safe and compliant at the same time.