Interpretive Notices

9037 - NFA COMPLIANCE RULES 2-9, 2-10, 2-29, 2-36 and 2-39: GUIDANCE ON THE USE AND SUPERVISION OF WEBSITES, SOCIAL MEDIA AND OTHER ELECTRONIC COMMUNICATIONS

(Board of Directors, August 19, 1999; revised January 1, 2020)

INTERPRETIVE NOTICE

Technology has impacted nearly every aspect of how Members conduct their commodity interest business, including how they communicate with customers and other market participants. Many Members use websites, social media and other internet-based forums (e.g., blogs, chat rooms, etc.) to promote and conduct their business with customers. E-mail and other electronic communications (e.g., instant messaging, text messaging, messaging services provided by a social networking site, etc.) have enabled Members and their Associates to engage in frequent and instantaneous communications with customers. While these platforms have many benefits, they also provide opportunities to spread unsubstantiated rumors, intentional misrepresentations and engage in other conduct that is inconsistent with NFA rules. Members and Associates are reminded that many NFA requirements, including Compliance Rules 2-9, 2-10, 2-29, 2-36 and 2-39 apply to all forms of communication related to their commodity interest business.

NFA Compliance Rule 2-9 requires Members and Associates with supervisory duties to diligently supervise employees and agents in the conduct of their commodity interest activities for or on behalf of the Member. The rule is broadly written to provide Members with flexibility in developing procedures tailored to meet their particular needs. This Interpretive Notice is intended to provide guidance to help FCM, IB, CPO and CTA Members establish appropriate content standards and supervisory oversight of websites, social media and other electronic communications used to conduct commodity interest business.

Websites, Social Media and other Internet-Based Forums

Both Members and their employees and agents have used websites, social media and other internet-based forums (e.g., blogs, chat rooms, etc.) to promote and conduct their business with customers. Any communication related to a commodity interest account, agreement or transaction that is posted by or on behalf of an FCM, IB, CPO or CTA Member on a website, social media page or another internet-based forum that can be viewed by the general public or a closed community that includes current and potential customers, falls within the definition of promotional material and is subject to the requirements of NFA rules. For example, a website, social media page or blog discussing commodity interests that is used, maintained or administered by or on behalf of a Member is considered promotional material. The same is true for any commodity interest-related content written by an FCM, IB, CPO or CTA Member or Associate that is posted on a website, social media page or other communication platform maintained by a third party.

FCM, IB, CPO and CTA Members must implement written supervisory procedures governing the use of websites, social media and other internet-based forums that are designed to achieve compliance with the requirements of NFA rules, including Compliance Rules 2-10 and 2-29. These supervisory procedures: must require prior review and approval of a website, social media page or forum used in connection with the commodity interest business of a Member by an appropriate supervisor and must ensure that each substantive change to or new version of such a website, social media page or other internet-based forum is reviewed and approved prior to its first use. Supervisory procedures should also prohibit or describe how the Member will supervise any features that cannot be reviewed in advance (e.g., a streaming script containing real-time market news). Finally, Members must periodically evaluate and, when necessary, modify their review procedures for website, social media and internet-based forums to ensure that they remain effective and must retain all required records, including records of prior versions and supervisory reviews and approvals.

Unless the website, social media page or internet-based forum limits access to a particular target audience, through a login mechanism or other means, the Member's review procedures should take into consideration the fact that the content is available to the public. Personal websites, social media pages or other internet-based forums of Associates, employees or agents that are used in connection with their commodity interest activities constitute promotional material of the Member and must be covered by the Member's supervisory program. Consequently, the Member's procedures must be adequate to enable it to properly review its Associates', employees' and agents' websites, social media pages and other internet-based forums, including all substantive modifications, according to its procedures. Additionally, to ensure compliance with the recordkeeping requirements, the firm's procedures should provide the means to identify the time frame in which particular versions of the website, social media page or other internet-based forum are in use. Finally, Members must periodically evaluate and modify as necessary their review procedures to ensure their effectiveness.

If a Member or Associate maintains a website, a presence on social media sites or hosts a blog, a chat room or other forum where commodity interests are discussed, the Member firm must supervise the use of that site, page or forum, including supervising comments or posts made by participants that are not affiliated with the Member. At a minimum, the Member or Associate must regularly monitor the content of the sites, pages or forums it hosts, promptly take down any post that violates NFA rules (e.g., a deceptive, misleading or fraudulent post) and ban users for egregious or repeat violations. Not only are these actions required by NFA’s supervision rules, they are both common sense and standard practice.

If a Member solicits leads through another party's website, social media or other forum, the Member will be responsible for supervising the content of such platforms and will be subject to an NFA disciplinary action for any content that violates NFA rules. Likewise, a Member may be subject to an NFA disciplinary action if it knows or should know that a non-Member or Member firm maintains a website, social media page or other internet-based forum with deceptive or misleading information related to commodity interests that links to the Member's website, social media page or other internet-based forum and the Member fails to take corrective action.

The fact that a Member creates a hyperlink from its website, social media page or internet-based forum to another website, social media page or internet-based forum does not, in and of itself, make the Member firm accountable for the content of the other site, page or forum. Member firms should bear in mind, though, that their supervisory obligations under Rule 2-9 and Rule 2-29 require them to diligently supervise their employees and agents who are responsible for creating and maintaining the web sites, social media pages or internet-based forums including hyperlinks. Members' supervisory procedures should include periodic inquiries as to whether their employees and agents are monitoring the general content of the website, social media page or internet-based forum to which the Member links. NFA is not suggesting that firms are necessarily responsible for a virtually infinite chain of links. At the same time, Members who seek to circumvent NFA promotional material and supervision rules by using a chain of hyperlinks to a "remote" website, social media page or internet-based forum may be held accountable for the content of that site, page or forum.

Electronic Communications

An FCM, IB, CPO or CTA Member's duty to supervise the use of commodity interest-related electronic communications, including e-mails, instant messages, text messages and messages sent through social media, by its employees and agents is basically the same as its duty to supervise other forms of correspondence. NFA expects each Member to adopt review procedures that are appropriate in light of its business activities, including the structure, size and nature of its business operations. Like other supervisory procedures, a Member's supervisory procedures with respect to electronic communications must:

• be in writing;
• identify by title or position the person responsible for conducting the review;
• specify how and with what frequency electronic communications will be reviewed and how that review will be documented;
• categorize the type of electronic communications that will be pre-reviewed or post-reviewed; and
• specify how electronic communications will be maintained and made available upon request by NFA and the CFTC.

Each Member is free to adopt the specific procedures that it will use to conduct its review. However, those procedures must take into consideration the nature of the communication, the relative sophistication of the recipient and the training and background of the employees and agents. In some instances, spot-checking, sampling, or using automated tools or key word searches to identify potentially problematic electronic communications between Associates, employees or agents and customers, may be appropriate and in others it may not. For example, a firm dealing with sophisticated or institutional customers might choose to implement an automated review, key word search or sample a relatively small but representative amount of the routine electronic communications. On the other hand, firms dealing with individual, retail customers might choose to use an automated review, key word search and review a larger sample of or even all electronic communications. Similarly, a firm may wish to conduct a comprehensive review of employees' and agents' electronic communications if they have a disciplinary history involving problems with customers or were employed by or associated with a firm that has been disciplined for fraud or sales practice violations.

Members' procedures should also address whether employees and agents are permitted to use electronic communication systems other than the firm's system. If a firm permits them to use other systems for business purposes, whether on their work or home computer, the firm's procedures must treat these off-system electronic communications as its own records and must ensure that the firm is capable of adequately retaining, reviewing and supervising these records. Given the supervisory problems that could arise, some firms may choose not to permit their employees and agents to communicate with the public outside of work through an electronic communication system that is not linked to the firm's network. A Member should implement supervisory procedures that are reasonably designed to ensure that its personnel are not using unauthorized electronic communications systems to conduct business on behalf of the Member.

In many instances electronic communications may constitute promotional material. Electronic communications directed to the public soliciting business constitutes advertising and is subject to the same rules as any other form of promotional material. For example, an e-mail message sent to targeted individuals or groups would be considered promotional material if its ultimate purpose was to solicit funds or orders. A Member's electronic communication review procedures must be designed to ensure compliance with NFA's promotional material content and review requirements. These requirements, found in NFA Compliance Rule 2-29, provide, among other things, for prior review of this type of electronic communication by appropriate supervisory personnel. Additionally, this type of electronic communication is subject to the specific recordkeeping requirements of Compliance Rule 2-29.

Members should properly educate and train their employees and agents on the firm's policies regarding electronic communications - particularly on those communications that are not reviewed by supervisory personnel prior to use. Special attention should be given to those employees and agents with previous compliance or disciplinary problems. Finally, Members must periodically evaluate the effectiveness of their electronic communications review procedures and modify them as necessary.

Recordkeeping

Pursuant to NFA Compliance Rule 2-10, FCM, IB, CPO and CTA Members must maintain certain books and records related to the conduct of their commodity interest business. Members are reminded that the content of electronic communication, and not the type of device or technology used to transmit the communication, determines whether the communication is subject to recordkeeping requirements. Furthermore, Members must train their Associates, employees and agents to ensure that they understand and comply with applicable record retention requirements.