U.S. securities regulators say public companies can release corporate information through social media venues, such as Facebook and Twitter, as long as investors have been alerted to the possibility.
The U.S. Securities and Exchange Commission (SEC) issued a report Tuesday, declaring that it will not bring enforcement action against Netflix CEO Reed Hastings, who posted some usage data on his Facebook page that was not announced in a press release or a financial filing.
While it is not bringing enforcement action in the case, the SEC suggests that this sort of disclosure would generally not be acceptable. However, given the uncertainty in this area, it has issued its investigation report in the case, setting out how it views the use of social media.
In that report, the SEC concludes that companies can use social media to announce key information, and remain in compliance with fair disclosure rules (Reg FD) — which require companies to distribute material information in a manner reasonably designed to get that information out to the general public broadly and non-exclusively — “so long as investors have been alerted about which social media will be used to disseminate such information.”
Reg FD aims to ensure that all investors have the ability to gain access to material information at the same time. The SEC said Tuesday that it applies to social media, and other emerging means of communication, in the same way that it applies to company websites. It notes that it issued guidance in 2008 clarifying that websites can be used to disseminate information to investors if they’ve been made aware that’s where to look for it; and the same guidance applies to social media.
“One set of shareholders should not be able to get a jump on other shareholders just because the company is selectively disclosing important information,” said George Canellos, acting director of the SEC’s division of enforcement. “Most social media are perfectly suitable methods for communicating with investors, but not if the access is restricted or if investors don’t know that’s where they need to turn to get the latest news.”
The report explains that the sort of disclosure that took place in the Netflix case — the release of material, nonpublic information on the personal social media site of an individual corporate officer, without advance notice to investors that the site may be used for this purpose — is unlikely to qualify as an acceptable method of disclosure under the securities laws. Personal social media sites of individuals employed by a public company would not ordinarily be assumed to be channels through which the company would disclose material corporate information, it says.