The Use of Testimonials in Social Media by Investment Advisers

Generally, SEC rules prohibit investment advisers from using testimonials in their advertisements.  In the past several years,  the SEC has encountered a number of questions concerning investment advisers’ use of social media.  Social media has facilitated consumers’ ability to research and conduct their own due diligence on current or prospective service providers.  The use of social media has increased the demand by consumers for independent, third-party commentary or review of any manner of service providers, including investment advisers.

The SEC recently provided guidance to assist firms in applying section 206(4) of the Investment Advisers Act of 1940 (“Advisers Act”) and rule 206(4)-1(a)(1) thereunder (“testimonial rule”) to their use of social media.  The guidance, in the form of questions and answers, seeks to assist investment advisers in developing compliance policies and procedures reasonably designed to address participation in this evolving technology, specifically with respect to the publication of any public commentary that is a testimonial.

Consistent with previous SEC guidance,  the SEC stated that in certain circumstances, an investment adviser’s or investment advisory representative’s (“IAR’s”) publication of all of the testimonials about the investment adviser or IAR from an independent social media site on the investment adviser’s or IAR’s own social media site or website would not implicate the concern underlying the testimonial rule.

Section 206(4) generally prohibits any investment adviser from engaging in any act, practice or course of business that the Commission, by rule, defines as fraudulent, deceptive or manipulative.  In particular, rule 206(4)-1(a)(1) states that:

“[i]t shall constitute a fraudulent, deceptive, or manipulative act, practice, or course of business . . . for any investment adviser registered or required to be registered under [the Advisers Act], directly or  indirectly, to publish, circulate, or distribute any advertisement which refers, directly or indirectly, to any testimonial of any kind concerning the investment adviser or concerning any advice, analysis, report or other service rendered by such investment adviser.”

Rule 206(4)-1(a)(1) was designed to address the nature of testimonials when used in investment advisory advertisements.  When it adopted the rule, the Commission stated that, in the context of investment advisers, it found “. . . such advertisements are misleading; by their very nature they emphasize the comments and activities favorable to the investment adviser and ignore those which are unfavorable.”   The staff has stated that the rule forbids the use of a testimonial by an investment adviser in advertisements “because the testimonial may give rise to a fraudulent or deceptive implication, or mistaken inference, that the experience of the person giving the testimonial is typical of the experience of the adviser’s clients.”

Whether public commentary on a social media site is a testimonial depends upon all of the facts and circumstances relating to the statement.  The term “testimonial” is not defined in the rule, but the staff has consistently interpreted that term to include a “statement of a client’s experience with, or endorsement of, an investment adviser.”  Depending on the facts and circumstances, public commentary made directly by a client about his or her own experience with, or endorsement of, an investment adviser or a statement made by a third party about a client’s experience with, or endorsement of, an investment adviser may be a testimonial.

The staff indicated that an investment adviser’s publication of an article by an unbiased third party regarding the adviser’s investment performance is not a testimonial, unless it includes a statement of a client’s experience with or endorsement of the adviser.  The staff also indicated that an adviser’s advertisement that includes a partial client list that does no more than identify certain clients of the adviser cannot be viewed either as a statement of a client’s experience with, or endorsement of, the adviser and therefore is not a testimonial.  Such an advertisement could nonetheless violate section 206(4) and rule 206(4)-1(a)(5) if the advertisement is false or misleading.

The SEC’s guidance on the use of testimonials and commentaries on social media is summarized below:

Q. May an investment adviser or IAR publish public commentary that is an explicit or implicit statement of a client’s experience with or endorsement of the investment adviser or IAR on the investment adviser’s or IAR’s social media site?

A. Generally, staff believes that such public commentary would be a testimonial within the meaning of rule 206(4)-1(a)(1) and its use in an advertisement by an investment adviser or IAR would therefore be prohibited.  For example, if an investment adviser or IAR invited clients to post such public commentary directly on the investment adviser’s own internet site, blog or social media site that served as an advertisement for the investment adviser or IAR’s advisory services, such testimonials would not be permissible.

Q. May an investment adviser or IAR publish the same public commentary on its own internet or social media site if it comes from an independent social media site?

A. When an investment adviser or IAR has no ability to affect which public commentary is included or how the public commentary is presented on an independent social media site; where the commentators’ ability to include the public commentary is not restricted; and where the independent social media site allows for the viewing of all public commentary and updating of new commentary on a real-time basis, the concerns underlying the testimonial prohibition may not be implicated.

As described in more depth below, publication of public commentary from an independent social media site would not raise any of the dangers that rule 206(4)-1(a) (1) was designed to prevent if:
• the independent social media site provides content that is independent of the investment adviser or IAR;
• there is no material connection between the independent social media site and the investment adviser or IAR that would call into question the independence of the independent social media site or commentary; and
• the investment adviser or IAR publishes all of the unedited comments appearing on the independent social media site regarding the investment adviser or IAR.

Under these circumstances, an investment adviser or IAR may include such public commentary in an advertisement without implicating the concerns underlying the testimonial rule.  If, however, the investment adviser or IAR drafts or submits commentary that is included on the independent social media site, the testimonial rule generally would be implicated. Also, if the investment adviser or IAR is allowed to suppress the publication of all or a portion of the commentary, edit the commentary or is able to organize or prioritize the order in which the commentary is presented, the testimonial rule generally would be implicated.

Q. What content is not independent of an investment adviser or IAR and what is a material connection that would call into question the independence of a site or commentary?

A. Commentary would not be independent of an investment adviser or IAR if the investment adviser or IAR directly or indirectly authored the commentary on the independent social media site, whether in their own name, a third party’s name, or an alias, assumed or screen name.  An investment adviser or IAR would have a material connection with a site or commentary that would call into question the independence of the site or commentary if, for example, the investment adviser or IAR: (1) compensated a social media user for authoring the commentary, including with any product or service of value; or (2) prioritized, removed or edited the commentary.

For example, an investment adviser could not have a supervised person submit testimonials about the investment adviser on an independent social media site and use such testimonials in advertisements without implicating the testimonial rule.  An investment adviser or IAR could not compensate a client or prospective client (including with discounts or offers of free services) to post commentary on an independent social media site and use such testimonials in advertisements without implicating the testimonial rule.

Q. May an investment adviser or IAR publish testimonials from an independent social media site in a way that allows social media users to sort the criteria?

A. An investment adviser or IAR’s publication of testimonials from an independent social media site that directly or indirectly emphasizes commentary favorable to the investment adviser or IAR or de-emphasizes commentary unfavorable to the investment adviser or IAR would implicate the prohibition on testimonials.  The investment adviser may publish only the totality of the testimonials from an independent social media site and may not highlight or give prominence to a subset of the testimonials.  Investment adviser or IAR sites may publish the testimonials from an independent social media site in a content-neutral manner, such as by chronological or alphabetical order, which presents positive and negative commentary with equal prominence.  Social media users, however, are free to personally display the commentary and sort by any criteria, including by the lowest or highest rating.  Investment adviser and IAR sites may facilitate a user’s viewing of the commentary by providing a sorting mechanism as long as the investment adviser or IAR site does not itself sort the commentary.

Q. May an investment adviser or IAR publish testimonials from an independent social media site that includes a mathematical average of the public commentary?

A. Publication by an investment adviser or IAR of such testimonials from an independent social media site would not raise any of the dangers that rule 206(4)-1(a) (1) was designed to prevent if the independent social media site were designed to make it equally easy for the public to provide negative or positive commentary about an investment adviser or IAR.  Investment advisers or IARs could publish testimonials from an independent social media site that include a mathematical average of the commentary provided that commenters themselves rate the investment advisers or IARs based on a ratings system that is not designed to elicit any  pre-determined results that could benefit any investment adviser or IAR.  The independent social media site, the investment adviser and the IAR may not provide a subjective analysis of the commentary.

Q. May an investment adviser or IAR publish public commentary from an independent site if that site also features the investment adviser or IAR’s advertising?

A. The existence of an investment adviser or IAR’s advertisement within the architecture of an independent site that also contains independent public commentary does not, in combination, create a prohibited testimonial or otherwise make the advertisement false or misleading, provided that the investment adviser complies with the material connection and independence factors described above and provided that the advertisement is easily recognizable to the public as a sponsored statement.  In other words, an advertisement would not cause the investment adviser or IAR’s publication of the independent social media site’s commentary to violate rule 206(4)-1 where (1) it would be readily apparent to a reader that the investment adviser or IAR’s advertisement is separate from the public commentary featured on the independent social media site and (2) the receipt or non-receipt of advertising revenue did not in any way influence which public commentary is included or excluded from the independent social media site.

Q. May an investment adviser or IAR refer to public commentary from an independent social media site on non-social media advertisements (e.g., newspaper, radio, television)?

A. An investment adviser or IAR could reference the fact that public commentary regarding the investment adviser or IAR may be found on an independent social media site, and may include the logo of the independent social media site on its non-social media advertisements, without implicating the testimonial rule.  For example, an IAR could state in its newspaper ad “see us on [independent social media site],” to signal to clients and prospective clients that they can research public commentary about the investment adviser or IAR on an independent social media site.  In contrast, an investment adviser or IAR may not publish any testimonials from the independent social media site on the newspaper ad without implicating the testimonial rule.

Q. Would a list or photographs of “friends” “or “contacts” on an investment adviser or IAR’s social media site that is viewable by the general public be considered a testimonial or otherwise violate Section 206(4) or Rule 206(4)-1?

A. It is common on social media sites to include a communal listing of contacts or friends.  The staff has stated that an advertisement that contains a partial client list that does no more than identify certain clients of the adviser cannot be viewed either as a statement of a client’s experience with, or endorsement of, the investment adviser, and therefore is not a testimonial.  Such an advertisement, however, could be false or misleading under Rule 206(4)-1(a)(5) depending on the facts and circumstances.  If the contacts or friends are not grouped or listed so as to be identified as current or past clients of an IAR, but are simply listed by the social media site as accepted contacts or friends of the IAR in the ordinary course, such a listing of contacts or friends generally would not be considered to be in violation of Rule 206(4)-1(a)(1).  However, if an IAR attempts to create the inference that the contacts or friends have experienced favorable results from the IAR’s investment advisory services, the advertisement could be considered to be in violation of Section 206(4) and Rule 206(4)-1.

Q. Individuals unconnected with a particular investment adviser or IAR may establish “community” or “fan” or other third-party sites where the public may comment on a myriad of investment topics, along with commentary regarding an investment adviser firm or individual IARs. Do such sites raise concerns under Rule 206(4)-1?

A. In the ordinary course, a third party’s creation and operation of unconnected community or fan pages generally would not implicate Rule 206(4)-1.  We strongly caution investment advisers and supervised persons when publishing content from or driving user traffic to such sites (including through hyperlinks to such sites), particularly if the site does not meet the material connection and independence conditions described above.  The Commission has stated that: any SEC-registered investment adviser (or investment adviser that is required to be SEC registered) that includes, in its web site or in other electronic communications, a hyperlink to postings on third-party web sites, should carefully consider the applicability of the advertising provisions of the [Advisers Act].  Under the Advisers Act, it is a fraudulent act for an investment adviser to, among other things, refer to testimonials in its advertisements.

For further information about this securities law blog post, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton, Florida, (561) 416-8956, by email at [email protected] or visit  www.securitieslawyer101.com.  This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal and compliance advice on any specific matter, nor does this message create an attorney-client relationship.  Please note that the prior results discussed herein do not guarantee similar outcomes.

Hamilton & Associates | Securities Lawyers
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855
www.SecuritiesLawyer101.com