While FINRA has a very strict limitation on advertisements focusing on procedures, investment advisers have a principles driven approach to limitations on advertising.
To start, an advertisement is any communication addressed to more than one person that offers (1) analysis concerning a security, (2) any information to used in making a determination to buy to sell a security, or (3) any investment advisory service with regard to securities. That means bulk emails, television ads, radio ads, websites, and social networking sites are advertisements. If you label yourself as an investment adviser in your Facebook profile, Twitter profile, or blog information, those sites are advertisements. Even if you use them solely for personal purposes, they may be considered an advertisement if you mention securities or offer your services.
Given the broad definition of advertisement, you should just assume that your activity on a social networking site is an advertisement.
Let’s focus on the things you can’t do in an advertisement and then come back to how they affect an investment adviser’s use of the internet and social networking sites. These all come from the general prohibition on fraud under Section 206 of the Investment Advisers Act.
First, you can’t have “any testimonial of any kind concerning the investment adviser or concerning any advice, analysis, report or other service rendered by such investment adviser.” That means no recommendations on LinkedIn or other social networking site. That means you would need to moderate your blog comments and delete any that seem like a testimonial or recommendation.
Second, you can’t refer to past specific recommendations of securities. However, you can separately provide a separate detailed list of all past recommendations over at least the past year, with name of the security, the date recommended, and the price at which it was recommended. You also need to include a legend that past performance is not an indication of future performance. That means you can’t advertise your past success. Effectively, you can’t cherry-pick your best performing securities recommendations. You also need to disclose all material facts necessary to avoid unwarranted inference.
Third, you can’t advertise a graph, chart, formula, or other device for use in determining which securities to buy or sell or when to do so.
Fourth, you can’t offer any report, analysis, or other service for free, unless it is actually entirely free and without any condition or obligation.
Fifth, your advertisement can’t have any untrue statement or material fact or otherwise be false or misleading.
In looking at these principles, you can’t communicate something on a web 2.0 site that you could not put in a newspaper advertisement.
There has not been any additional guidance from the SEC on the use of Web 2.0 by investment advisers. In a speech last week, Mary Schapiro said that the SEC “hasn’t come to a resolution on the new technology.” That alone may shy investment advisers away from using web 2.0 and social networking sites.
- Rule 206(4)-1 The Advertising Rule
- Compliance and Recommendations on Social Networking Sites – previous post
- FINRA’s Guide to the Internet – previous post
- Section 206 of the Investment Advisers Act
- SEC No Action Letters on Advertising for Investment Advisers
- The TCW Group, Inc., November 7, 2008
- Investment Adviser Association, December 2, 2005
- Trainer, Wortham & Co. Froley, Revy Investment Co. Starbuck, Tisdale & Assoc., December 6, 2004
- Investment Counsel Association of America, Inc., March 1, 2004
- Jennison Associates LLC, July 6, 2000