FCA publishes finalised guidance on social media and financial promotions

By Katrina Cockram, Principal Consultant, UK

On the 26 March 2024, the Financial Conduct Authority (FCA) published a press release alongside finalised guidance (FG24–1) on ensuring financial promotions on social media are compliant. This replaces the previous statement released by the regulator in 2015 (FG15-04) following a consultation in 2023.

Headlines of the finalised guidance

The guidance is quite thorough, but our key takeaways are:

• The FCA has repeated its guidance that financial promotions must be standalone compliant, irrelevant of the media used
• The FCA highlights that social media may not always be appropriate to promote financial products
• Similarly to how financial promotions are required to be standalone compliant, the FCA has highlighted that risk warnings should be prominent and these rules are generally “media-neutral”. Firms should consider the existing guidance on prominence
• As such, the FCA has set out relevant examples of prominent risk warnings across different social media channels
• Firms are reminded of the Consumer Duty and how it could apply to social media
• Confining promotions to a restricted target market on social media may be practically difficult. Where a promotion is designed only for a professional target market for example, it’s not sufficient to simply include a disclaimer to the effect that the promotion is ‘for professional investors only’. If firms are considering communicating promotions to a restricted audience on social media, they should carefully consider whether they’re able to comply with applicable requirements
• The FCA has highlighted the harm influencers (or “finfluencers”) can have on the market. These individuals may be unauthorised and can inspire high levels of trust which could be misleading
• The FCA expects that adequate systems are in place to sign off on social media communications, and firms must keep records outside of those social media channels

Standalone compliance

• Each external communication must comply the financial promotion rules when considered individually
• Where promotions of complex financial promotions require additional information to support consumer understanding, it’s allowed to include supporting hyperlinks and/or separate pathways for the consumer to access that information
  • This doesn’t remove the requirement for prominence in order for the promotion to meet the financial promotion rules
  • Any links or sources must be clearly brought to the consumers attention
• Promotions mentioning performance, future or otherwise, must observe the COBS 4 rules on providing performance information

Prominence

• Rules on information that must be included in promotions in a “prominent” way across the FCAs various sourcebooks are generally “media neutral”
• The regulator draws firm’s attention to previous guidance from 2011 on prominence in financial promotions
• Firms should ensure information which is required to be displayed prominently “is displayed without needing click-through or any other optional action to view it”. This includes posts on platforms such as Facebook where text is truncated and text in the promotion is partly obscured by an ellipsis (such as “see more…”)

Prescribed risk warnings

• Firms should include the risk warnings required by the financial promotions rules relevant to the product being communicated
• The FCA points to behavioural research demonstrating that risk warnings are more effective when viewed at the time of, or just before, the communication or promotion
• The regulator sets out what a prominent risk warning looks like across different media types:

High-risk investments

• Firms are urged to note that certain investments banned from being mass marketed to retail clients (e.g. NMPI or mini-bonds), should be very carefully considered if using social media – the key being that firms must be able to ensure promotions of these products will not be viewed or received by retail investors
• In relation to high-risk investments such as crypto assets or crowdfunding that can be mass market to retail investors but are subject to certain restrictions, firms must ensure those restrictions are met

Compliance for unregulated or non-UK based entities

• The regulator states that the territorial scope is purposefully broad, and it extends to any communications capable of having an effect in the UK, i.e. financial promotions don’t need to be expressly targeted to UK consumers in order to be required to be compliant
• If UK consumers can view the financial promotion and potentially engage in the investment activity being promoted, it must be compliant
• Unauthorised persons communicating financial promotions which are capable of having an effect in the UK need to comply with the financial promotion restriction in the same way as any other unauthorised persons. This means ensuring that the content of their financial promotions is approved by an appropriate authorised person or that their promotions are exempt

Get in touch

The updated guidance is quite broad, so please get in touch if you’d like further clarification on anything raised by the regulator.

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