In April 2017 FINRA issued Regulatory Notice 17-18 providing additional guidance on the use of social media and digital communications by member firms and persons associated with member firms. The guidance specifically relates to FINRA Rule 2210 – Communications with the Public, and supplements previously issued guidance in Regulatory Notices 10-06 and 11-39, published in 2011. The new guidance is in the form of FAQ’s and concentrates on the areas of recordkeeping, third-party posts and hyperlinks to third-party sites.
I have previously written about the SEC’s guidance on social media use by companies, including as a method for communications with investors and the public. The most recent blog is HERE and includes hyperlinks to prior blogs, including a three-part summary of the SEC Guidance on Social Media and Websites for Company Announcements and Communications.
Brief Overview of Rule 2210
FINRA Rule 2210 governs communications by FINRA member firms and associated persons, including: (i) institutional communications – including any written or electronic communication, distributed or made available only to institutional investors such as banks, insurance companies and investment companies; (ii) retail communications – including any written or electronic communication distributed or made available to more than 25 retail investors within any 30-calendar-day period; and (iii) correspondence. The Rule also sets forth requirements related to approval, review and recordkeeping of communications; filing requirements and review procedures and content standards.
The Rule’s general content standards apply to all communications and are meant to ensure that communications are fair, balanced and not misleading. Communications to retail customers or potential customers have the highest standards. The communication rules focus on the recipient and not the type of product (IPO, private, debt, etc.) that might be being discussed.
Subject to certain exemptions, an appropriately qualified registered principal of the member firm must approve each and every retail communication before the earlier of its first use, or its filing with FINRA’s Advertising Regulation Department. However, this requirement does not apply where another member firm has used the same communication and received approval from FINRA as to its content. In other words, member firms can piggyback on each other’s advertising and communication approvals.
The requirement also does not apply to: (i) certain communications excepted from the definition of a research report or debt research report unless the communication makes a financial or investment recommendation; (ii) any retail communication that is posted on an online interactive electronic forum; and (iii) retail communication that does not make any financial or investment recommendation or otherwise promote a product or service of the member firm.
All correspondence must be subject to general supervision and review requirements.
Members must establish written procedures that are appropriate to their business, size, structure, and customers for the review by an appropriately qualified registered principal of institutional communications used by the member and its associated persons. The procedures must be reasonably designed to ensure that institutional communications comply with applicable standards. When the procedures do not require review of all institutional communications prior to first use or distribution, they must include provisions for the education and training of associated persons as to the firm’s procedures, documentation of the education and training, and surveillance and follow-up to ensure that the procedures are implemented and adhered to.
As required by Securities Exchange Act Rule 17a-4(b), member firms must maintain all records, including all digital communications related to their business. Records must be maintained for a minimum of three years. Determining whether a communication must be retained depends on its content and not upon the type of device or technology used to transmit the communication. Firms also have an obligation to train and educate their associated persons regarding the differences between business and personal (non-business) communications and must have procedures in place to ensure that any business communications made by associated persons are retained, retrievable and supervised.
Records must include: (i) a copy of the communication and the dates of first and last use; (ii) the name of any principal who approved the communication and the date of approval; (iii) if the communication was not approved, the name of the person who prepared or distributed it; (iv) information on the source of any statistical table, chart, graph or other illustration; (v) where the firm or representative is relying on another member’s approval, the name of the member and a copy of the review letter and approval from FINRA; and (vi) for any retail communication that includes or incorporates a performance ranking or performance comparison of a registered investment company, a copy of the ranking or performance used in the retail communication.
Filing Requirements and Review Procedures
For the first year as a licensed broker-dealer, a firm must file all retail communications with FINRA’s Advertising Regulation Department at least 10 days prior to its first use. If a communication is a free writing prospectus that has been filed with the SEC, it can be filed with FINRA within 10 days of its first use, instead of prior. FINRA can also impose a filing requirement on any firm at any time if it determines that the firm has departed from the standards in Rule 2210.
Retail communications concerning registered investment companies, which include or incorporate performance rankings or comparisons, must always be filed at least 10 business days prior to use. Likewise, retail communications recommending a specific registered investment company, concerning a direct participation program, concerning collateralized mortgages or concerning derivatives or indexes must all be filed with FINRA at least 10 business days prior to their first use.
If a member has filed a draft version or “storyboard” of a television or video retail communication pursuant to a filing requirement, then the member also must file the final filmed version within 10 business days of first use or broadcast.
Certain retail communications are excluded from the filing requirements, including: (i) communications based on a template that has previously been filed with FINRA and approved for use either without material change, or changes limited to updated statistical and other information; (ii) retail communications that do not make any financial or investment recommendation or otherwise promote a product or service of the member; (iii) retail communications that do no more than identify a national securities exchange symbol of the member or identify a security for which the member is a registered market maker; (iv) retail communications that do no more than identify the member or offer a specific security at a stated price; (v) offering documents, reports or free writing prospectus that have been filed with the SEC or a state or offering documents for exempt offerings; (vi) tombstone communications identifying a firm’s participation in an offering; (vii) press releases that are made available only to members of the media; (viii) republications of unaffiliated third-party articles or reports that the firm has neither adopted nor become entangled with; (ix) correspondence; (x) institutional communications; (xi) communications that refer to types of investments solely as part of a listing of products or services offered by the member; (xii) retail communications that are posted on an online interactive electronic forum; (xiii) press releases issued by closed-end investment companies that are listed on the New York Stock Exchange; (xiv) research reports on exchange traded securities.
FINRA may grant exemptions to the filing requirements for good cause. All filings must be approved by a registered principal within the firm prior to submitting to FINRA.
Rule 2210 focuses on antifraud issues. In particular, the Rule provides that “All member communications must be based on principles of fair dealing and good faith, must be fair and balanced, and must provide a sound basis for evaluating the facts in regard to any particular security or type of security, industry, or service. No member may omit any material fact or qualification if the omission, in light of the context of the material presented, would cause the communications to be misleading.” The next section continues: “No member may make any false, exaggerated, unwarranted, promissory or misleading statement or claim in any communication. No member may publish, circulate or distribute any communication that the member knows or has reason to know contains any untrue statement of a material fact or is otherwise false or misleading.”
Information may only be placed in a footnote if it is still clear. Members must ensure that statements are not misleading and that they provide balanced treatment of risks and potential benefits. FINRA requires that firms consider their audience in creating content, and such content must be audience-appropriate. Communications cannot exaggerate and may not predict or project performance.
There are specific requirements for content in communications. For example, a member firm must prominently include the name of the member firm, fictional names, and relationships between parties listed in the communication. There are specific requirements regarding communications related to tax-free or tax-exempt products and disclosures of fees and expenses for investment management companies and pooled funds.
Testimonials and Recommendations
Rule 2210 governs the use of testimonials about a member firm and the use of recommendations by a member firm. Each requires a reasonable basis and must be rendered by a person with the knowledge and experience to form a valid opinion. Retail communications involving recommendations about a product or service by a member firm have additional technical requirements.
All communications must contain a prominent reference and hyperlink to BrokerCheck.
FINRA Regulatory Notice 17-18 provides additional guidance on the use of social media and digital communications by member firms and associated persons through FAQ’s designed to supplement previously issued guidance on the areas of recordkeeping, third-party posts and hyperlinks to third-party sites.
As noted above, and as required by Securities Exchange Act Rule 17a-4(b), member firms must maintain all records, including all digital communications related to their business. Records must be maintained for a minimum of three years. Determining whether a communication must be retained depends on its content and not upon the type of device or technology used to transmit the communication. Firms also have an obligation to train and educate their associated persons regarding the differences between business and personal (non-business) communications and must have procedures in place to ensure that any business communications made by associated persons are retained, retrievable and supervised.
The new guidance confirms that the record retention requirements apply to communications made through text messaging or a chat service or app. Prior to allowing text or chat communications, a firm must ensure that it has the ability to retain the content of the communications.
Third-party Posts; Adoption or Entanglement
Generally speaking, posts by customers or other third parties on social media or any website established by a firm or its personnel do not constitute communications with the public by the firm or its associated persons under Rule 2210. Accordingly, these posts do not require pre-use approval by a principal in the firm, and as a practical matter, a firm could not require third parties to seek such approval. However, if the firm or associated person paid for the preparation of the content or otherwise caused it to be prepared and posted, the firm would be responsible for its content under FINRA’s “entanglement” theory. Moreover, if the firm or associated person explicitly or implicitly endorses or approves the third-party content, it would also be responsible for its content under FINRA’s theory of “adoption” of content. Where a firm or associated person is responsible for the content, it must comply with all the requirements of Rule 2210.
The new guidance clarifies that a firm or registered representative can contact a third party to correct factual information, such as the spelling of a name, an incorrect address or website, where the firm was completely unaffiliated with the publisher and not involved in the publications content, without such correction resulting in entanglement or endorsement.
Hyperlinks to Third-party Sites
A firm is responsible for links to a third-party site if that firm has adopted or become entangled with the content. A firm would be deemed to have adopted content that it explicitly or implicitly endorses or approved and would be deemed to be entangled in content where it has participated in the development of such content. A member firm may not establish a link to any third-party site that the firm knows or has reason to know contains false or misleading content and may not include a link on its website if there are any red flags that indicate the linked site contains false or misleading content.
The new guidance clarifies that by sharing or linking to third-party content, the member firm has adopted that content and is responsible for its content to the same extent it is for firm-generated communications. Where the shared or linked content itself has additional links to other content, the firm must do a facts-and-circumstances analysis to determine if it would also be responsible for that additional content. The firm would not be deemed to have adopted the content in the links in the shared content, solely by sharing or linking.
In general, if a firm shares or links to content that in turn links to other content over which the firm has no influence or control, the firm would not have adopted the other content. On the other hand, if a firm shares or links to content that in turn links to other content over which the firm has influence or control, the firm would then have adopted that other content. In addition, if the firm shares or links to content that itself serves primarily as a vehicle for links, the firm would be responsible for the content in the links.
The new guidance also clarifies that whether a firm has adopted the content of an independent third-party website or any section of the website through the use of a link is fact dependent. Two factors are critical to the analysis: (i) whether the link is “ongoing” and (ii) whether the firm has influence or control over the content of the third-party site.
Where the link is “ongoing” the firm would not have adopted the content. “Ongoing” means that: (i) the link is continuously available to investors who visit the firm’s site; (ii) investors have access to the linked site whether or not it contains favorable material about the firm; and (iii) the linked site could be updated or changed by the independent third party and investors would still be able to use the link. As an example, some firms link to regulatory agencies such as FINRA or the SEC.
However, if the firm has influence or control over the third-party site, the firm would be entangled with its content and thus responsible under Rule 2210.
Personal communications are not subject to Rule 2210. Moreover, if an associated person shares or links to content that the member firm made available, which is not related to its products or services, the communication is likewise not subject to Rule 2210. Examples given in the FINRA notice include information about the firm’s sponsorship of a charitable event, a human interest article, or an employment opportunity.
Native advertising is defined as content that bears a similarity to the news feature articles, product reviews, entertainment and other material that surrounds it online. Native advertising can appear to be a genuine news article or product review at first glance. FINRA clarifies that native advertising is not inherently misleading and can be used as long as it complies with Rule 2210, including that the firm ensures that the communication is fair, balanced and not misleading. Native advertising must prominently disclose the firm’s name, accurately reflect any relationship with the firm and any other entity or individual named in the advertisement, and state whether mentioned products or services are offered by the firm.
Where a member firm arranges for or pays for third-party native advertising, such as content in a blog or posts by an influencer, the firm would be responsible for its content under the entanglement theory. As provided in an earlier Regulatory Notice, if a firm or representative has paid for the publication, production or distribution of any communication that appears to be a magazine, article or interview, then the communication must be clearly identified as an advertisement. Firms should clearly identify as advertisements any communications that take the form of comments or posts by influencers and include the broker-dealer’s name as well as any other information required for compliance with Rule 2210.
Testimonials and Endorsements
Many social networking sites, such as LinkedIn, allow individuals to post opinions or provide comments regarding a person’s professional capabilities. FINRA allows registered representatives and associated persons to utilize social networking platforms for business-related purposes as long as the account is supervised and retained by the member firm. FINRA does not include unsolicited third-party opinions or comments posted on a social network to be communications of the firm or representative for purposes of Rule 2210. However, if the firm or representative likes or shares content, they have adopted the content and become subject to the communication rules, including prohibitions on misleading or incomplete statements or claims, the testimonial requirements, and the supervision and recordkeeping rules.
Testimonials are governed by Rule 2210 and in particular:
(A) If any testimonial in a communication concerns a technical aspect of investing, the person making the testimonial must have the knowledge and experience to form a valid opinion.
(B) Retail communications or correspondence providing any testimonial concerning the investment advice or investment performance of a member or its products must prominently disclose the following: (i) the fact that the testimonial may not be representative of the experience of other customers; (ii) the fact that the testimonial is no guarantee of future performance or success; and (iii) if more than $100 in value is paid for the testimonial, the fact that it is a paid testimonial.
Testimonials are subject to the general Rule 2210 standards as well, including that they not be false, misleading, exaggerated or promissory. The disclosures that must be required can be included via a clearly marked and labeled hyperlink. Also, investment advisors are prohibited from directly or indirectly publishing, circulating or distributing testimonials.
Effective June 6, 2016, Rule 2210 requires each of a firm’s websites to include a readily apparent reference and hyperlink to BrokerCheck on (i) the initial web page that the firm intends to be viewed by retail investors, and (ii) any other web page that includes a professional profile of one or more registered persons who conduct business with retail investors. The reference and hyperlink are not required to be included in communications appearing on a third-party website, including social media sites, or in email or text messages.
The new guidance clarifies that the reference and hyperlink to BrokerCheck would not need to be included in an app created by a firm. However, if the app accesses and displays the firm’s website, the link must be readily apparent when the page is displayed through the app.
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