Anti-hawking regime requires super funds to watch all of TikTok

Superannuation funds would be required to view all TikTok videos to be compliant under the corporate watchdog’s anti-hawking regime, according to an association.

The Association of Superannuation Funds of Australia’s (ASFA’s) submission into the Australian Securities and Investments Commission (ASIC) hawking probation regulatory guide 38 (RG 38) said taking steps to verify identities on social media was incredibly difficult.

Last month, ASIC said in its RG 38 that super funds were expected to identify social media posters if there were posts made by an alias to the super fund about withdrawing consent from their communications.

“There are a myriad of social media channels that RSE [registrable superannuation entity] licensees do not monitor, utilise or have an active presence in,” ASFA said.

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“This raises several issues, such as defining the scope of what is classified as a social media channel for the purposes of RG 38 and whether RSE licensees need to undertake additional monitoring of all channels to ensure that they have complied with the hawking prohibition.

“For example, does ASIC consider that RSE licensees are required to view all TikTok videos in order to meet their obligations? Given consent expires after six weeks, the complexities in tracking social media channels for this purpose does not seem commensurate with the risk it is trying to mitigate.”

The association said if consent could be withdrawn via social media channels, ASIC needed to incorporate strict guidelines on the scope and extent of monitoring social media channels by super funds under its hawking prohibition.

ASFA said this could include the requirement that:

• The consumer directly contact the RSE licensee via a social media channel with a new post, private message or equivalent;
• The consumer was easily identifiable by name;
• The withdrawn consent was provided in writing; and
• RSE licensees should only be required to monitor a social media channel that it has an active presence in.

ASFA noted the hawking prohibition obligations would be difficult for certain forms of communicative technology such as chat bots.

“For the purposes of RG 38, a consumer interaction with a chat bot could be considered a ‘real‐time’ interaction similar in nature to a discussion or conversation,” it said.

“ASFA recommends ASIC provide examples where a chat bot would and would not be compliant with the hawking prohibition.

“It would also be useful to understand how ASIC views the application of RG 38 to situations where a consumer interaction began with a chat bot but progressed to a discussion with a live chat agent.

“This transfer usually occurs because of certain answers a consumer has provided to a chat bot or where a chat bot has not been able to satisfactorily answer the questions posed and has asked the consumer whether they wish to speak to a live chat agent.”