Complying with Rules When Words Have Two Meanings

Jimmy Paige, Robert Plant, 1970, Dallas Memorial Auditorium, Copyright Deb McAlister, All Rights Reserved.

“There’s a sign on the wall, but she wants to be sure
‘Cause you know sometimes words have two meanings…”
–Jimmy Paige, Robert Plant, Stairway to Heaven

 Marketing people tend to like words. And, as a group, we’re pretty good at defining, understanding, and using them effectively. When it comes to complying with rules and regulations, sometimes words have two meanings – and understanding what they mean can be critical for marketers who work in regulated industries like insurance, financial services, health care, and pharmaceuticals or medical devices.

For instance, the SEC, FTC, FNRA and other regulators have their own unique definitions of common social and digital media terms.

  • Publicly available site posts (Twitter, LinkedIn) are advertising
  • Comments may be advertising or public appearances
  • Password protected site posts (Facebook) are sales literature
  • Chat room discussions are public appearances
  • Posts to a group discussion are public appearances

This is important, because the definitions come with a set of guidelines on what can (and can’t) be said. Most registered representatives, for example, are quite clear what they can and can’t say in an advertisement, collateral or brochure, or public appearance. By understanding what the terms mean to regulators in social media terms, suddenly the rules for social media usage become clear, too.

These definitions and other rules for digital and social media marketing are included in the downloadable presentation deck from the webinar where I was a panelist last week, Marketing & Compliance in a Regulated Environment: Basic Rules of the Road for Digital and Social Media.

Another word with multiple meanings in a regulated environment is message. All messages – email, Twitter direct messages (DMs), Facebook messages and status updates, and Tweets, for instance – are treated the same way by some regulators while others have separate rules for different classes of messages.

Webinar participants discussed the fact that eDiscovery & archiving rules apply to ALL messages, including Twitter DM’s and Facebook status updates. This is important, because DM’s and status updates aren’t like email – they can be deleted by third parties, as can comments on a moderated blog or media site, a LinkedIn group, and many other online communities. So an archiving and storage solution is imperative for marketers in a regulated environment to avoid serious complications in the event of an eDiscovery request.

One recent court ruling that surprised many attendees is the fact that CAN-SPAM applies to Facebook messages and Twitter DM’s. In the case Facebook vs. MAXBOUNTY, which has not yet been decided, the court refused to dismiss the defendant’s claim that CAN-SPAM did not apply to Facebook messages because they are not “email” under the definition of the law. This interpretation means that commercial messages sent by other digital means may be subject to the same disclosure and opt-out rules as email.

For more definitions and background from the Marketing & Compliance in a Regulated Environment webinar, click here

About debmcalister

I'm a Dallas-based marketing consultant and writer, who specializes in helping start-up technology companies grow. I write (books, articles, and blogs) about marketing, technology, and social media. This blog is about all of those -- and the funny ways in which they interesect with everyday life. It's also the place where I publish general articles on topics that interest me -- including commentary about the acting and film communities, since I have both a son and grandson who are performers.
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