Mar 31, 2017

Canadian Issuers Need To Tighten Up Their Social Media Say Regulators

Earlier this month, the Canadian Securities Administrators (comprised of Alberta, Ontario and Québec securities commissions) released Staff Notice 51-348 Staff’s Review of Social Media Used by Reporting Issuers. This notice publishes the results of the CSA’s analysis of “social media disclosure” by 111 reporting issuers on websites such as Facebook, Twitter, YouTube, LinkedIn and Instagram, as well as the issuer’s own websites, message boards and blogs.

The analysis’ goal was to understand if the issuers’ disclosures were consistent with National Policy 51-201, Disclosure Standards and National Instrument 51-102 Continuous Disclosure Obligations. Well… not so much. 

From The Globe and Mail: 

The Canadian Securities Administrators, an umbrella group for provincial securities commissions, issued new guidelines Thursday for social media usage, telling companies they must continue to report material information with traditional press releases but can use social media to further disseminate the news. 

The guidance steers Canada in a different direction from the United States, where the Securities and Exchange Commission allows companies to report key information first through social media outlets as long as they alert investors which platform will be used.

Sonny Randhawa, OSC deputy director of corporate finance, said regulators believe it is still important that companies disclose information with a press release because it must be filed with regulators on the public SEDAR website, and all investors can see it at the same time.

“One of the beauties of social media, of course, is that entities can post something on social media and also remove it at their own will. And, from a selective disclosure securities regulatory issue, that does create some concerns on our end if unbalanced or misleading disclosure is put out there and then momentarily taken down,” Mr. Randhawa said. “We don’t have the same concerns with press releases which go on SEDAR and remain as part of the permanent record.”

Details:

25% of the corporate issuers studied had to take corrective action and filed clarifying disclosure on SEDAR, delete inappropriate social media disclosure as well as committed to improving their disclosure and governance practices.

77% of issuers had not developed a specific policy for their disclosure practices on social media websites. The CSA Notice emphasizes that issuers should be providing factual and balanced disclosure across all platforms of shareholder communications… including social media.

The CSA identified areas of concern where issuers need to improve their disclosure practices:

  • Selective or early disclosure when some investors receive material information through social media that other investors do not receive because it is not generally disclosed.
    • Issuers (and any person or company in a special relationship with a reporting issuer) are prohibited from informing, other than in the necessary course of business, anyone of material non-public information before that material information has been generally disclosed
    • Information has been generally disclosed if it has been disseminated in a manner calculated to effectively reach the marketplace, and if investors have been given a reasonable amount of time to analyze the information
    • Posting material information on an issuer’s website is not acceptable as the sole means of satisfying the requirement to “generally disclose” information
  • Misleading and unbalanced social media disclosure where information is not sufficient to provide a complete picture or is inconsistent with information already disclosed by issuers on the SEDAR.
    • Do not make a statement that is misleading or untrue, or which does not state a fact that is necessary to make the statement not misleading and would be expected to have a significant effect on the market price of a security
    • Announcements of material changes should be factual and balanced
    • Unfavourable news must be disclosed just as promptly and completely as favourable news
    • An issuer’s press release should contain enough detail to enable the media and investors to understand the substance and importance of the change it is disclosing
    • Issuers should avoid including unnecessary details, exaggerated reports or promotional commentary
  • Forward-looking information.
    • An issuer that discloses material forward-looking information must identify it as such and state the material factors or assumptions used to develop the forward-looking information
    • Issuers should discuss in their MD&A events and circumstances that occurred in the period that are reasonably likely to cause actual results to differ materially from material forward-looking information which has been previously disclosed, for a period that is not yet complete
    • Issuers should disclose in their MD&A any differences between actual results and previously disclosed forward-looking information for the period
  • Insufficient social media governance policies in place to support social media activity.
    • Who can post information about the issuer on social media
    • What type of sites (including personal social media accounts vs corporate) can be used
    • What type of information about the issuer (financial, legal, operational, marketing, etc.) can be
    • posted on social media
    • What, if any, approvals are required before information can be posted
    • Who is responsible for monitoring the issuer’s social media accounts, including third party postings about the issuer
    • What other guidelines and best practices are followed (for example, if an employee posts about the issuer on a personal social media site they should identify themselves as an employee of the issuer)
    • Third party posts on social media which is inconsistent with the issuer’s own disclosure.

Action items: 

Issuers are advised to create solid governance guidelines around their social media usage, including:

  • Establish a social media policy. The policy should clearly define delineate who can post, what type of information they can post, where it can be posted and whether approvals are required.
  • Establish a firm “tone from the top” social media practice. Senior management and directors should be attentive of the company’s social media engagement with its investors and be well versed with the company’s social media policy.
  • Certify employees that are involved with a company’s social media initiatives are familiar with the disclosure obligations under National Instrument 51-102 Continuous Disclosure Obligationsand National Policy 51-201 Disclosure Standards.
  • Avoid superfluous details, inflated reports and overtly promotional commentary. Establish a balance between being “sound” and being “salesy.”
  • Safeguard that social media disclosure is derived from previously disclosed information. If new statements are made on social media, but sure the information is not material to the company.

Lastly, and this may be an USA perspective, don’t share (retweet) analyst reports or other third party optimistic-biased articles. I suspect that many of the companies – especially micro and small-cap – were dinged for their working with “marketing firms” that crossed over into stock promotion. This is not a judgement, but an educated guess.

DOWNLOAD: IR calendar for Canadian (SEDAR) companies. CLICK HERE.

Author Bradley H. Smith is Director of Marketing, Investor Relations  and Shareholder Communications at PR Newswire / Cision.

 

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