Recommendation 2016-R-01 on the Use of Social Media for Commercial Purposes

Recommendation on the use of social media for commercial purposes 2016-R-01 of November 14, 2016

1. Context
   Social media, characterized by the use of technologies facilitating social interaction, have caused a upheaval in communication modes, including for commercial purposes.
   Financial sector professionals have thus quickly invested in these new communication vectors, allowing them to accelerate the dissemination of information and content, and to more effectively reach their prospecting targets and clientele1.

Within the framework of its mission to protect customers, the ACPR has observed that social media are now integrated into the commercial strategy of persons subject or potentially subject to its supervision, in that they offer the possibility of developing a new customer journey or retaining a clientele, notably through the management of a community around events or news or the dissemination of content intended to promote products or services.

Given the usage codes specific to these media and notably the instantaneity of communications, some actors might consider that these new supports are not subject to the same rules as traditional supports. However, compliance with these rules is crucial for the protection of the financial sector's clientele.

Adopting fair and transparent communication on social media, which notably integrates the principles of clear identification of the message sender as well as the principles of clarity and balance of content, contributes to compliance with these rules. It also helps limit the risks for the organization of seeing its reputation tarnished and for the public to directly distinguish regulated actors from others, whose attempts at fraudulent offers harm confidence in the financial sector and the digital economy.

All these issues were the subject of exchanges within the common pole, between the ACPR and the AMF, with a view to drafting and disseminating soft law elements2.

1. Thanks to the sharing of content or the recommendation by an actor, of its products or services by social media users.
2. The AMF has thus already clarified its doctrine on the communication of portfolio management companies and issuers of structured credit securities on social media by amending its position-recommendations DOC-2011-24 on the drafting of commercial documents and the marketing of UCITS, DOC-2012-19 on the preparation of the activity program of portfolio management companies and self-managed collective investments and DOC-2013-13 on the drafting of commercial documents in the context of the marketing of structured credit securities.

Recommendation on the use of social media for commercial purposes Prudential Supervision and Resolution Authority 2

2. Principles set by regulations and sectoral recommendations3
   The principles of information, presentation, balance of communications of an advertising nature, and prohibition of misleading commercial practices set by the Consumer Code, regulations4 or sectoral recommendations apply to social media.

In particular, the prohibition of misleading commercial practices set by Book I of the Consumer Code5 must be considered in light of the practices made possible by these new media. As an example, the dissemination of misleading reviews, positive or negative, including false recommendations concerning products, their distributor or producer, as well as the purchase of "Likes6", "followers7" or even the purchase of "views8" could be qualified as a misleading commercial practice. The same could apply to the use, on social media, of editorial content to promote a product or service when the professional has financed it themselves without clearly indicating this in the content or by means of clearly identifiable images or sounds.

The liability of professionals may be engaged by the content they disseminate on social media, including when they relay all or part of content initially published by third parties. Thus, content "sharing" techniques, notably "retweeting"9, are covered.

3. Objectives
   In order to make known its expectations regarding the use of social media for commercial purposes to persons subject or potentially subject to its supervision, the ACPR recommends by this document good practices relating to the identification of the sender, the presentation of content as well as the archiving methods of content disseminated for commercial purposes on social media and the control of the rules organizing their dissemination.

These good practice recommendations aim to illustrate how these principles can be implemented by financial sector professionals on the specific communication vectors that are social media.
They are implemented in compliance with current legal and regulatory provisions, notably those relating to the protection of personal data or the digital economy.

3. In addition to the principles stated in this part, it should be noted that within the framework of an advertising self-regulation approach, the Professional Advertising Regulatory Authority (ARPP) published a cross-sectoral recommendation on digital advertising communication updated in October 2015.
4. Including provisions relating to the identification of professionals.
5. Cf. Articles L. 121-2 to L. 121-4 of the Consumer Code.
6. "Like" on Facebook or Instagram for example.
7. "Followers" on Twitter, LinkedIn, Viadeo…
8. On YouTube for example.
9. Terminology specific to Twitter.

Recommendation on the use of social media for commercial purposes Prudential Supervision and Resolution Authority 3

4. Scope
   This recommendation applies to any person subject or potentially subject to the supervision of the ACPR, including those intervening in free provision of services or free establishment (hereinafter "the professionals"), who disseminates on social media, including by sharing, communications of an advertising nature or any communication having the objective of concluding a sales act or inciting to purchase (hereinafter "content10").

This recommendation covers only content disseminated by professionals as well as employees or corporate officers authorized to communicate on behalf of or for the account of the professional (hereinafter "authorized persons"). Communications of image or notoriety and private exchanges are not covered.

Social media are understood as all technologies allowing social interaction and the creation of collaborative content on the internet, including via mobile applications: blogs, social networks, discussion forums. This list is not exhaustive.

The notion of "sharing" is understood as the act by a professional or an authorized person of relaying, for advertising purposes, incitement to purchase or with a view to concluding a sales act, all or part of messages published by third parties.

5. Recommendation
   With the objective of clear, fair and responsible communication on social media, the ACPR recommends to professionals, in accordance with the provisions of Articles L. 612-1, II 3° and L. 612-29-1, second paragraph of the Monetary and Financial Code, the following good practices:

5.1 On the methods of identification of the content sender
5.1.1 For natural person professionals, to create on social media professional accounts distinct from their private accounts, these professional accounts being the only ones used to disseminate content.
5.1.2 For legal entity professionals, to create on social media, for authorized persons, professional accounts distinct from their private accounts, these professional accounts being the only ones communicating on behalf of or for the account of the professional.
5.1.3 To choose identifiers11 allowing to clearly recognize the professional nature of the accounts used on social media12.

10. Content may include messages, allegations, photos or videos.
11. Ex: username, pseudonym, "login"…
12. Ex: "Company A", "General Agent Company A", @societeB_region, "Commercial Brand C", Name surname Company A, @namesurname_CompanyA, name surname Company B region…

Recommendation on the use of social media for commercial purposes Prudential Supervision and Resolution Authority 4

5.2 On the methods of content presentation
5.2.1 To use a fair and clear presentation13.
5.2.2 When the advertising nature of content does not appear directly, to add an explicit indication allowing to identify the advertisement as such.
5.2.3 When the content refers to a commercial offer or a page allowing access to it, to explicitly mention the commercial intent of the offer if it does not appear clearly from the content.
5.2.4 To ensure the balance of the content, notably regarding the advantages and conditions highlighted; in the case of a share, to ensure this balanced nature by counterbalancing the initial content if necessary by any means.
5.2.5 For content disseminated on a social media presenting objective limits of space or time, to mention in an apparent manner the existence of additional information14 and to make them directly accessible by a reference to another digital support15, provided that upon reading the content, the principles of balance and clarity are preserved.

5.3 On the methods of archiving of content
and the control of the rules organizing their dissemination
5.3.1 To define rules organizing the dissemination of content on social media as well as procedures allowing to control their compliance.
5.3.2 To define and implement an archiving policy for this content that allows responding to the control objective stated in 5.3.1 and for the purpose of processing potential complaints; to ensure that this archiving is carried out in compliance with current legislative and regulatory provisions relating to data retention and is stable in terms of archive support; when technical archiving means are proposed by the social media, the professional may resort to them if they believe these means allow them to respond satisfactorily to their needs and are compliant with current legislative and regulatory provisions.
5.3.3 To ensure that the procedures organizing the methods of commercial communication by a professional on behalf of or for the account of another professional include social media.

This recommendation will be effective as of October 1, 2017.

13. As mentioned in part 4 "Scope", this principle as well as the following ones apply even when the dissemination of content results from a share.
14. Ex: "more details".
15. Ex: Internet page.