Suppose you mix it up with a portfolio company. You want to put word out about your thesis, and what a crappy job management has done, and how the BoD fell asleep, and how your plan and director nominees can fix things.

And, suppose you already sent out news releases, and talked to the large investors, and published newspaper ads. Can you also use some more novel ways of communicating with shareholders? Tweet your message? Post it on social networks?

Well, you can do all of those things, of course. Carl Icahn and Daniel Loeb do it, so why can’t you?

But, you need to follows some rules and regulations that pertain to all communications among investors. Thankfully, the SEC has set forth some guidelines for using social media, which activist investors should know about.

Like Soliciting Proxies

The SEC has elaborate and detailed requirements about the form and contents of proxy solicitations. Of course, the principal requirement is that shareholders file detailed proxy materials in advance of soliciting proxies, or even in advance of communicating with other investors about a proxy solicitation.

The SEC also allows a shareholders to communicate with other shareholders before filing these proxy materials. Those communications must include a detailed disclaimer about the future availability of proxy materials.

The required disclaimer is huge, running to hundreds of words. Investors would include it in letters to investors, in print advertising, on web pages, and in blog posts.

But, Tweeting Proxies?

How should an investor include the disclaimer in a Tweet? With only 140 characters available? How about in a Facebook or LinkedIn post or status update?

Carl Icahn included a .jpg photo of the disclosure an an attachment to his recent Tweets about eBay. For those that followed these tweets, this explains why we kept seeing these puzzling photos on every Tweet.

In a laudable example of timely and useful regulatory guidance, the SEC has weighed in with somewhat practical rules. Investors need to satisfy two conditions:

1. 1.The media limits the size of a message, such as the 140 character limit on Twitter
   

2. 2.The disclaimer would exceed the limit.
   

Then, the communication can link to the disclaimer, rather than including the entire disclaimer. This would clearly be impossible on Twitter. On Facebook and other media, though, without the same limits, a shareholder would have to include the entire disclaimer.

Still, Some Open Questions

Broc Romanek observes that the guidelines do not cover whether a .jpg photo satisfies the requirements. He also wonders whether using ten or fifteen characters of valuable Twitter real estate on a link to the disclaimer adds any value.

In other word, he notes that few if any shareholder read or care about this disclaimer. He would just ditch these and many similar disclosures.

So, tweet, blog, and post away. Just pay attention to how you include the required disclaimers.