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Administrative/Regulatory,
Corporate,
Government,
Securities

Oct. 2, 2018

Technology, ego and the siren call of social media

The ancient Greeks told a myth of Scylla and Charybdis, a pair of sea monsters on opposite sides of a narrow strait and lured unsuspecting sailors to their death, on either side. Our modern equivalents might be technology and ego.

Ronald E. Wood

1st VP/ Senior Attorney
Brown White & Osborn LLP

333 S Hope St
Los Angeles , CA 90071

Email: rwood@brownwhitelaw.com

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Technology, ego and the siren call of social media
New York Times News Service

The ancient Greeks told a myth of Scylla and Charybdis, a pair of sea monsters on opposite sides of a narrow strait and lured unsuspecting sailors to their death, on either side. Our modern equivalents might be technology and ego. Technology enables social media, a seductive siren whose persistent beckoning for the next text, post or tweet to satisfy an insatiable global audience can often lead to hostile invective and reputational ruin. And ego, especially in the technology space, leads some to view themselves as levitating above the less technologically adept, bestriding cyber space like a modern Colossus of Rhodes; heroes of the information age, even as they are often exposed as having feet of clay. Like the great Odysseus in navigating the hazards of Scylla and Charybdis, their inflated view of themselves is often the source of their undoing.

So it came to pass for Elon Musk, a modern day Odysseus -- would-be conqueror of land, space and the underworld through Tesla Motors, SpaceX and The Boring Company. Seeking to tame the Scylla of short sellers he believed were bedeviling the stock price of his beloved Tesla, or engaging the Charybdis of corporate bravado, his hubristic boast on Aug. 7 that he was considering taking Tesla public and had secured the necessary funding to do so was, according to the Securities and Exchange Commission, completely false. On Sept. 27, the SEC sued Musk in a civil enforcement action seeking an injunction, civil penalties and, most worrisome, a bar from serving as an officer or director of a public company. As of Saturday, news reports indicated that Musk quickly agreed to settle the case, step down as chairman of Tesla for a period of three years and pay a $20 million penalty.

Our ready access to technological devices that can instantly connect us to a global audience is a seductive inducement to treat communications made through those devices casually, as Musk recently did. But the resulting pile of woe he brought upon himself presents the best evidence that, though accessibility may imply a certain democratic casualness, it doesn't mean such platforms should be used that way. Any message with the potential to move markets and affect fortunes will always be taken seriously. As we often hear, when certain people talk, others listen. Corporate CEOs are one such class of persons. Their words and messages are governed by the same protocols humans have observed since the Code of Hammurabi. Whether etched in stone, scribbled on papyrus, printed on glossy paper or sent into the ether, a false statement by a corporate CEO is just that: a false statement. And when others rely on such statements to their detriment, the speaker will be called to account by tried and true low tech methods.

Musk's penance was completely self-inflicted. Just as ancient mariners knew the hazards of the straits of Scylla and Charybdis, Musk knew full well the hazards of using social media. In 2013, Netflix boss, Reed Hastings, posted -- or boasted -- on Facebook that Netflix had, for the first time, streamed more than 1 billion hours of content in a single month. The SEC immediately commenced an investigation into whether Hastings had selectively disclosed material corporate information to his limited audience of Facebook friends and followers in violation of Regulation Fair Disclosure. This response made clear that social media is not a rules-free zone; the same laws that govern the physical world also apply in cyber space.

The SEC ultimately decided not to take action. But it used the occasion to bless the use of social media as an appropriate platform for the release of corporate information, provided advance notice of the company's intent to post an announcement via a particular platform is given to everyone -- a kind of corporate heads-up -- so the entire market can be simultaneously informed. In the end, Musk's ill-fated missive -- rumored to have been influenced by a wild time in the company of a paramour -- might more closely align not with the wisdom of Odysseus, but with the folly of another mythological figure, Icarus, who flew too close to the sun, with tragic results.

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