Your IndustryJun 4 2015

Liking, retweeting and Hashtags

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Jay Naylor, head of marketing at Personal Touch Financial Services, says the regulator’s views on a communication being retweeted or shared is simple: the responsibility always lies with the communicator, not the author of the tweet.

The firm will have responsibility to ensure the original tweet is compliant, fair and not misleading if they decide to re-publish.

If a consumer retweets a promotional communication from a firm and they don’t have a commercial interest in the tweet, then only the original communication from the firm falls within the FCA’s remit.

Retweeting, sharing and liking a consumer’s original communication can also be considered an inducement or an invitation, Mr Naylor adds.

Firms should be careful if they ‘like’ or ‘retweet’ comments, warns Michael Ruck, senior associate for law firm Pinsent Masons. He says neither the original communicator nor the ‘retweeter’ is necessarily exempt from responsibility.

Where a recipient shares or forwards a firm’s communication, Mr Ruck says responsibility lies with the communicator and not necessarily the firm. However, he says any breaches in the original communication will still be the responsibility of the originating firm.

Mr Ruck says when a tweet is intended for another authorised person but is retweeted to a retail customer, which is akin to hard copy brochures being re-distributed beyond their original scope, firms should take steps in their labelling and targeting.

If the comment a firm wishes to retweet about itself is from a customer then Mr Ruck says the firm should consider the content of the tweet.

He says: “A firm should consider whether the tweet endorses the benefits of a regulated product or service. If so, forwarding it would constitute a promotion by the firm and the firm would be responsible.

“It is advisable for firms to also refer to the Perimeter Guidance Manual to ensure they are not operating outside of the scope of their authorisation.”

Sue McLean, technology and outsourcing lawyer at international law firm Morrison & Foerster, says how your action is judged will depend on the nature of the original communication.

For example, she says if the tweet praises you or the firm for great customer service that would not be a promotion because customer service is not a controlled activity under the rules.

If a customer is endorsing the benefits of a particular product then Ms McLean says re-tweeting, sharing or liking that communication would constitute a financial promotion.

Given the regulatory scrutiny of this area, it would be easy for advisers to just give up on retweets, sharing and Hashtags. But the more you follow, share and retweet, the wider an audience your reach stretches to, says Richard Ardron, marketing director of SimplyBiz Group.

He encourages advisers to get out there and says your sharing of others’ posts should not be limited just to comments about you.

Mr Ardron says: “It is all about the multiplication affect and by engaging in others’ discussions, you are opening yourself up to their followers.

“With regards to re-tweets, you should refer back to the FCA’s guidance on social media. Retweeting client endorsements relating to quality of service can be considered safe ground.

“However, in some instances relating to regulated products or services, re-tweeting a client’s endorsement can constitute a financial promotion.”

Helen Turner, distribution and development director of Tenet Group, says as a rule of thumb advisers should know by sharing or liking other people’s content, in the minds of their followers they are effectively endorsing what has been said.

Hashtags - what are they good for?

On the subject of the use of Hashtags in light of comments from the FCA, our experts were divided.

Simplybiz’s Mr Ardron says there is no escaping Hashtags. He points out some people have even started using them in every day speak: “I believe it was added to the Oxford dictionary back in 2014.”

In essence, he says it is a way to categorise content. Others can find you and you can find content based on the same subject simply by using a Hashtag in front of a descriptor. In short, Mr Ardron says it allows you to connect with a wider audience using a common theme or subject.

“Using hashtags can be useful and you can be as specific or generic as you like (which in turn will determine how many others you will connect with) – but don’t use them all the time – remember – be relevant.”

Pinsent Mason’s Mr Ruck urged advisers not to use this device, especially for promotional content.

When using hashtags, Mr Ruck says firms still have to comply with the FCA’s Conduct of Business Sourcebook, which requires firms to ensure that financial promotions addressed to a client are clearly identifiable as such. The FCA initially suggested that one way was the use of #ad.

There was also a further query regarding whether hashtags would be appropriate for the inclusion of risk warnings or to highlight jurisdictional limitations to products.

Following this feedback the FCA revised its stance on this issue and concluded that hashtags were not an appropriate way to identify promotional content. So, #ad is not a ‘Get out of gaol’ card for advisers.

One of the reasons is that a significant aspect of the hashtag functionality is that, when clicked on, the consumer will be led to a separate page where all the communications with this hashtag are displayed. These communications and their content will be outside the control of the firm.

Mr Ruck says there is potential for consumer confusion as the majority of the information will be irrelevant to the initial communication, although this may not be immediately obvious to the user.

Another reason, according to Mr Ruck, is the warning or information would be ultimately diminished by the running together of the words in undifferentiated text (for example, #capitalatrisk) and by the link to another page with largely irrelevant material, with the result that the consumer does not effectively access the important information.

Tenet’s Ms Turner, Personal Touch’s Mr Naylor and Morrison & Foerster’s Ms McLean all agreed hashtags can be used, but with certain caveats relating to promotional activity.

If you are using social media to issue a financial promotion, Ms McLean says you should not use hashtags as the FCA guidance states that hashtags are not an appropriate way to identify promotional content, whether that is using a hashtag to identify a promotion (#ad) or, for example, to highlight risk (#capitalatrisk), or point out jurisdictional limitations (#UKinvestors).

However, she says if you are using social media for communications that do not involve a financial promotion, for example simply to share a news article or commentary about a new piece of legislation or industry guidance, there is no restriction on your use of hashtags.

But Personal Touch’s Mr Naylor says hashtags can be used effectively, but you need to do your research and ensure there are no negative or non compliant references linked to the hashtag you are trying to utilise.