“All opinions are my own” – disclaimers, risk warnings and social media

Warning Sign

Regular readers will know that I recently co-hosted a twegal (tweeting legals) tweetup. Before following someone new on Twitter, I always read their profile and have noticed that many lawyers include a disclaimer along the lines of “opinions are my own, not those of my firm”…

I’ve not, however, noticed a significant difference between the tweets of those who include this disclaimer in their bio and those who don’t. I’d welcome any comments on how restricted lawyers do/do not feel in what they say online.

In contrast, my financial services contacts seem much more hesitant about using social media. I know that access can be a challenge. When I worked at Morgan Stanley I had less than a dozen contacts on LinkedIn because I couldn’t log on from work and didn’t want to sit at my PC when I finally got home. I couldn’t help but smile when I saw Morgan Stanley mentioned on LinkedIn IPO team!

But restricted access isn’t enough to explain the disparity. Everyone I know in financial services could overcome this obstacle from their phones or tablets. Many of them are incredibly competitive about having the latest gadgets and apps. So why aren’t they joining the virtual cocktail party?

FSA LogoRegulation undoubtedly plays a part. The Financial Services Authority (FSA) has previously warned firms about social media promotions – formal advertising rules apply regardless of the informality of the medium. When communications are not promotional, they must still be fair, clear and not misleading – regular reviews are required to ensure information is accurate, relevant and up-to-date.

However, while the FSA has said that firms must be aware that all their communications could come under scrutiny, they’ve provided very little practical guidance as to what is, or is not, acceptable. The FSA have highlighted that “Twitter limits the number of characters that can be used, which may be insufficient to provide balanced and sufficient information” but are unwilling to be prescriptive on whether or not a link to further details would fall foul of its rules on stand-alone compliance – “where space is limited it is for firms to decide which benefits (and consequently which risks) to include”.

Arbitrage opportunities are often found on the boundaries of regulation in financial services. These arbitrage situations can result in hugely profitably margins and significant market share. It will be interesting to see which of the major banks jumps first… Starting, perhaps, with disclaimers and risk warning in their online profiles, then encouraging Twitter to add a disclaimer/risk warning acronym that becomes widely adopted as with RT and #FF, then creating a campaign to have this acronym recognised outside of social networks, then…

Maybe I should nudge Twitter’s co-founder @Biz to have a chat with the FSA…