The Markets in Financial Instruments Directive (MiFID) II came into force in January 2018. Has your firm taken steps to ensure that you are fully compliant with the data retention rules?
The Securities and Exchange Commission (SEC), charged seven people with insider dealing after they allegedly used secure messaging apps to net $5m profits trading inside information on mergers and acquisitions. According to the SEC, former Bank of America IT employee, Daniel Rivas, passed on tips to friends and family members over a 3-year period who used that inside information to trade.
Former investment banker, Christopher Niehaus, was fined £37,000 by the Financial Conduct Authority (FCA) for disclosing confidential information on WhatsApp.
MiFID II data retention rules mean a much tougher regime and tighter controls over electronic communications. Your firm needs to comply with strict record keeping requirements, even capturing conversations, emails and instant messages.
5 steps to comply with MiFid II data retention rules:
- Assess 'current state' and conduct Impact Assessments - What happens now? Is it fit for purpose? Are there existing Codes of Conduct? What rules are currently in place in respect of encrypted messaging apps and use of personal mobile phones? What of organisational culture? What other improvements could be made, if any?
- Gather evidence using objective criteria - To what extent do employees use electronic communications, personal mobiles, encrypted messaging apps etc in their dealings with clients? What about anecdotally?
- Check the tech - Conduct a cost-benefit analysis to determine whether it's feasible/desirable to use other tech platforms or innovations to capture records - eg VoxSmart, EikonMessenger, etc.
- Get the tone right - It's all about the culture and how you sell it. How are employees reacting to the news? If you're facing a backlash and Big Brother accusations, perhaps it's time to big up the positives - eg the benefits this offers in terms of dispute resolution and evidence at litigation?
- Archiving - What retention periods currently apply and should they be extended? Records must be kept for a minimum of 5 years (up to 7 years on request by a national competent authority) or the lifetime of the relationship. Can we deliver?
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