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"Records shall include the recording of telephone conversations or electronic communications relating to, at least, transactions concluded when dealing on own account and the provision of client order services that relate to the reception, transmission and execution of client orders."
MiFID II Article 16 introduces new requirements for financial services firms to record all electronic communications with their clients - including information provided through websites and social media. Get a free trial archive from MirrorWeb and find out how we can help you become compliant.
A firm must take reasonable steps to retain all records made by it under CODS 11.8.5 R:
(1) for a period of at least 6 months from the date the record was created;
(2) in a medium that allows the storage of the information in a way accessible for future reference by the FCA, and so that the following conditions are met:
(a) the FCA must be able to access the records readily;
(b) it must be possible for any corrections or other amendments, and the contents of the records prior to such corrections and amendments, to be easily ascertained;
(c) it must not be possible for the records to be otherwise manipulated or altered.
A firm must arrange for orderly records to be kept of its business and internal organisation, including all services and transactions undertaken by it, which must be sufficient to enable to appropriate regulator or any other relevant competent authority under MiFID or the UCITS Directive to monitor the firm's compliance with the requirements under the regulatory system, and in particular to ascertain that the firm has complied with all obligations with respect to clients.
Firms should also keep adequate records of any significant communications. As well as helping to protect consumers, these records enable the firm to deal effectively with any subsequant claims or complaints. Firms should not rely on digital media channels to maintain records, as they will not have control over this: social media in particular may refresh content from time to time, with the consequent delection of older material.
Every firm that intends to communicate, or permit its associated persons to communicate, through social media sites must first ensure that it can retain records of those communications as required by Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934 and NASD Rule 3110. SEC and FINRA rules require that for record retention purposes, the content of the communication is determinative and a broker-dealer must retain those electronic communications that relate to its "business as such".
Every member, broker and dealer subject to §240.17a-3 shall preserve for a period of not less than six years, the first two years in an easily accessible place, all records required to be made pursuant to paragraphs §240.17a-3(a)(1), (a)(2), (a)(3), (a)(5), (a)(21), (a)(22) and analogous records created pursuant to paragraph §240.17a-3(f).
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