Houston Social Media Compliance Attorneys

Social Media Compliance for Regulated Businesses

Today’s fast-paced, digital world places many expectations on companies. While time-honored traits like reliability and quality service will always be valuable, businesses in the modern era must also have an online presence, often by way of social media.

Though social media can be a powerful tool for building brands, recognition, and reputation, they pose innumerable dangers and legal risks. Modern companies with plans to build, maintain, or strengthen their social media presence should therefore be mindful of the particular risks and potential legal, professional, or regulatory issues they may face.

Have questions about legal counsel for your social media efforts? Call (713) 909-7323 to speak with an attorney from Hendershot Cowart P.C.

On This Page:

• How Hendershot Cowart P.C. Can Help
• Strategic Legal Advice for Regulated Businesses

Hidden risks lurk within social media, both to brand and bottom line. Constructive legal counsel becomes critical to reducing potential liability – whether it relates to government investigations and potential sanctions or exposure to consumer, competitor, or employee claims. 

We help businesses design social media policies and programs in compliance with these regulations and/or regulatory agencies:

• U.S. Securities and Exchange Commission (SEC)
• Financial Industry Regulatory Authority (FINRA)
• National Labor Relations Board (NLRB)
• Federal Drug Administration (FDA)
• Health Insurance Portability and Accountability Act (HIPAA)
• Texas Medical Records Privacy Act (TMRPA)
• Investment Advisers Act
• Federal Trade Commission (FTC)

In 2013, the SEC issued guidance stating that earnings and other material information can be distributed via social media and remain in compliance with the Regulation Fair Disclosure law (RegFD). Make sure your social media policy considers RegFD and that key employees – including directors and senior executives, investor relations and public relations officers – take care with their social media activity. Even “liking” a company or social media post can be construed as material information and lead to SEC sanctions.

FINRA is a government-authorized not-for-profit organization that oversees U.S. broker-dealers. Their rules and guidance on social media are housed under FINRA Rule 2210 (Communications with the Public). FINRA offers annual guidance to remind its members of their regulatory obligations. Its 2022 guidance highlighted the need for comprehensive supervisory systems for mobile communications and effective practices for the promotion of digital assets. Our social media attorneys can review your firm’s compliance program against FINRA’s most up-to-date guidance and help you address any regulatory weaknesses.

Social media policies should be crafted narrowly, so that there is no limitation of employees’ rights relative to a “protected concerted” activity as defined by the National Labor Relations Act. That said, general griping about management over social media outlets such as Facebook and Twitter is not protected, nor is disparaging the company’s products or services when not in relation to a labor controversy. Our attorneys can help you craft a policy and design training that makes this distinction clear to employees.

The FDA acknowledges that social media allows drug and device manufacturers to engage more directly with consumers and healthcare providers. As such, the agency has adapted its strict disclosure regulations for the character limitations and interactive, real-time nature of online communication. Our social media attorneys can advise you on compliance with the FDA’s social media guidelines while still allowing you to take full advantage of this interactive media. We can also advise you when and how to correct misleading information posted by third parties.

There have been several well-publicized social media HIPAA violations reported in the media over the past several years. Patient-specific information must be kept private and secure in accordance with HIPAA, even on employee-owned devices. The best way to ensure HIPAA compliance is to have a clear policy on the use of social media during and after work hours and to conduct training at the time of hire and at least annually thereafter. Social sharing of protected health information can lead to severe penalties. Having a clear, written policy in place is your first defense.

Like HIPAA, the Texas Medical Records Privacy Act, or Texas Privacy Act, focuses on maintaining the privacy of patient information. Unlike, HIPAA, The Texas Privacy Act applies to a wider range of entities, including businesses and state agencies. The Texas Privacy Act also regulates the privacy of a broader category of personal information, including biometric information and location data.

The Investment Advisers Act imposes strict rules on advertising procedures and use of third-party reviews that extend to social media. This means that SEC-Registered Investment Advisers (RIAs) must ensure that any content they share is fair, balanced, and not misleading, and that they comply with regulations regarding the use of testimonials, endorsements, and performance claims. RIAs may also be required to maintain records of their social media communications, and to include specific disclosures and disclosures about compensation arrangements. Regulations that govern the use of social media by the financial services industry continue to evolve: A New Marketing Rule went into effect in November 2022 that replaces certain provisions of the Investment Advisers Act. Our social media law attorneys can bring you and your financial services firm up to speed on the latest regulatory developments.

The FTC regulates advertising, marketing, endorsements, influencers, and reviews. Whether you are a social media influencer or a business promoting its products or services through influencer marketing, it is your responsibility to comply with laws against deceptive ads, particularly the FTC Act. Your attorney can advise you on compliance with the law and on the latest guidance published by the FTC governing social media marketing and advertising.

At Hendershot Cowart P.C., our social media attorneys advise companies in highly regulated industries on compliant social media practices. We also help clients design employee policies and social media training programs that keep everyone in the organization on the same page.

While we can’t help you craft viral social media messages, we can help ensure that your social media activity doesn’t go viral for the wrong reasons. One misstep by an employee, officer, or influencer can damage your brand and credibility, and draw negative attention from regulators. Cover that risk with comprehensive regulatory counsel from the social media attorneys at Hendershot Cowart P.C.

Call (713) 909-7323 or contact us online to speak with an attorney about social media compliance and your legal needs. Our firm serves clients across Houston, the state of Texas, and beyond.