“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…

Jon Harman - April 7, 2011

The issue of the disclaimer is probably not that useful, ie it doesn’t really matter. I put one there are sometimes people think I am the official voice of my org on Twitter, which is not strictly true. This way I distinguish. I’ll give you the cut down of our programme on social media for lawyers for further advice on this soon.

Linda Cheung - April 8, 2011

Thanks Jon. I wonder if others feel the same way, or do believe their disclaimers matter. Cut down sounds great – look forward to it.

Laurie A - April 13, 2011

I’m with Jon on this one – the main reason I have a disclaimer is so that people don’t think I am speaking on behalf of an organisation of 150 people if I say that I am having a biscuit, like a certain film, going to a concert, or even expressing a view on a legal development.

Steve Kuncewicz - April 13, 2011

I’m with Laurie and Jon-this is going to be fertile ground for employment claims over the next few years, so until the medium and its users become more mature (see the recent Vodafone Fail and Twitterjoke Trial, as well as John Dixon v Scientology on Twitter) the distinction’s a necessary thing.

@Oxfordlawyer - April 13, 2011

Linda – we are lawyers. We like disclaimers…simples!

WardblawG - April 14, 2011

As @Oxfordlawyer aptly states, lawyers do like their disclaimers.

I’m with Steve on this one, who is with Laurie and Jon 🙂

The Twitterjoke Trial, as Steve mentioned, in particular sparked a flurry of twitter disclaimer activity, with users writing “my tweets are not intended to be menacing” etc. However, copycat tweets regarding the recent Dutch shopping centre shooting landed 4 people in jail. I’m not aware if their twitter bios stated that the tweets weren’t intended to threaten homicidal shootings.

I do think that for those lawyers in firms, as opposed to self-employed consultants, it is sensible to have at least some disclaimer even if it means eating into the precious 160 characters permitted in a twitter bio. “Tweeting in a personal capacity” would be one of the shorter ways of putting it. Will be interesting to see what the courts have to say in the next few years.

PS Linda, will be in touch re guest blogging. Likewise, if anyone wants a post on my homepage, drop me a line and hopefully see you on 7 June.

Best wishes
Gavin

Jon Harman - April 18, 2011

I wonder if an opinion can ever be anything other than your own on Twitter which is often what makes it appealing, otherwise it is a position that a company takes. I’m sure one day I will say something that will be my undoing, but in the words of Popeye I am what I am. It’s the trade off to engaging with other humans, sometimes you may upset or offend without intention, sometimes you will be flippant – but I’m all for that, otherwise the world and Twitter will be Stepford Wives.

Rebecca Hirst - April 19, 2011

I run the Tweet stream for @first_direct, one of the first banks on Twitter. I also have my own Tweet stream complete with disclaimer @rebeccahirst, which to be honest I don’t really use (Twitter overkill).

At first direct we have a social media policy which doesn’t restrict our employees from engaging in the SM space, but advises them not to confuse business with pleasure. This is why we restrict access to SM at work and ask them to make it clear that their opinions are their own.

We have specifically designated Tweeters who represent the bank making it clear responses are official and we ask that everyone else uses a disclaimer to avoid confusion and potential issues.

We always have the welfare of our customers and employees at the forefront of our minds, but even though it’s a challenging place for a bank to be, it’s really exciting to be part of the social media revolution.

P.S. All opinions are my own – only joking 😉

Linda Cheung - April 19, 2011

Thank you for joining the discussion Rebecca. First Direct are now top of my financial services social media list – hope you have plans in place to maintain your crown 😉 🙂

I’m impressed with your straight-forward policy and am curious to know who the “specifically designated” individuals are. Could you forward their usernames so that I can take a peek at their timelines? I see that you’ve not only included a disclaimer, but have protected your tweets – an intentional belt and braces approach?

Yes, a challenging place for a bank to be – thumbs up for your efforts!

Kelvin - May 4, 2011

Interesting commentary Linda – I think the general feedback I see from companies and service providers alike is that we all love disclaimers… everybody (and organisation) likes to cover their back…in particular when it’s in a casual, broadcast format without content moderation. I agree with the personal vs. work aspect of social media – and that’s why you have Facebook and LinkedIn (respectively)!

However, I would love to see banks embracing social media, though this trend frankly seems far away. They are on Twitter etc primarily for brand presence rather than effective customer acquisition or marketing. On that note, links are therefore the only way round giving fair/sufficient info on social platforms…

Linda Cheung - May 6, 2011

Thanks Kelvin. With regards to your wish to see banks embracing social media, this Q&A on Citi’s internal use might be of interest: http://bit.ly/mpA5Fm – apparently clients are “the next frontier”!

Rory Webber - May 17, 2011

Great discussion Linda. Outside of the regulatory issues, I think it’s a wider debate. We’re in a distinct point in time when the work/life lines are so blurred, we need to decide whether we want to be known by a work, or life ‘persona’, or just be known as real people. While legal professionals (and I know a fair few) like to maintain an air of professionalism, in real terms, people ‘buy’ people. So I would argue that they cautious legal pros should choose to just ‘be’. Clients appreciate that sometimes their lawyers talk about work and sometimes not. If you express an opinion that clients don’t agree with, as long it’s not a legal opinion, they probably dont care anyway…

@lenwelter - June 9, 2011

I always thought the Morgan Stanley block on LinkedIn was more to do with blocking head hunters – I guess that is a form of ‘risk’ control…

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