The SEC's Office of Compliance Inspections and Examinations has issued a 'National Examination Risk Alert' concerning the use of social media by investment advisers. According to the Alert, OCIE has been evaluating RIA use of social media and has concerns about whether firms are ensuring that use of social media does not violate the Advisers Act’s antifraud, compliance, and recordkeeping rules. The OCIE staff makes several recommendations including: (i) adopt specific policies and procedures with respect to use of social media rather than relying on other more general policies relating to client communications or advertising; (ii) maintain an exclusive list of approved sites; (iii) prohibit investment recommendations or information about investment performance or specific investment services or products; (iv) review content before posting; and (v) train employees and obtain compliance certifications. OCIE is also concerned that third party comments including the “like” functionality could be deemed an impermissible testimonial. OCIE also warns that firms must figure out how to ensure appropriate recordkeeping.
OUR TAKE: It will be very difficult to comply with all of OCIE’s “recommendations” and still effectively utilize social media. Our inference is that OCIE does not want firms or its associated personnel to use social media.
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