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United Kingdom: FCA targets “finfluencers” and illegal promotions on social media in updated guidance

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In brief

The UK financial services regulator, the Financial Conduct Authority (FCA), has published a consultation to update its guidance on social media financial promotions. 

In 2015 the FCA published guidance on its approach to the supervision of financial promotions in social media (FG15/4). Since then, the FCA notes that social media has become an increasingly vital part of firms’ marketing strategies. The FCA has also identified a substantial increase in financial influencers or “finfluencers” on social media promoting financial products, particularly investment and credit products.

In order to make sure the FCA’s expectations in terms of financial promotions on social media are clear and reflect the current and future social media landscape, the regulator has issued updated draft guidance on social media and customer communications. 

The consultation closes on 11 September 2023, with final guidance expected later this year. The FCA plans to retire the previous guidance FG15/4 when this new guidance is finalised.  

In more detail

The draft guidance will be relevant to:

  • Firms communicating or approving financial promotions on social media.
  • Influencers and unauthorised persons communicating financial promotions on social media. 
  • Social media platforms. 
  • Overseas firms communicating financial promotions to UK consumers on social media.

Key changes in the draft updated guidance include:

  • The draft guidance clarifies how the principle of “required information” will apply to different social media platforms.
  • The FCA suggests techniques (such as geo-blocking) which firms can use to mitigate the risk of harm that can occur where UK consumers interact with financial promotions which direct them to a non-UK entity while the UK consumer still believes they are engaging with an FCA regulated firm. 
  • Where applicable, the Consumer Duty will raise the FCA’s expectations of firms communicating financial promotions on social media above the requirement of Principle 7 to be “clear, fair and not misleading”. Principle 12 (alongside PRIN 2A) requires firms to act to deliver good outcomes for retail customers and the FCA uses this updated guidance to supplement its expectations of this requirement for communications on social media.
  • The draft guidance addresses the harm arising from influencers communicating approved financial promotions, particularly for firms approving communications for high-risk investments (HRIs). 
  • The draft guidance also addresses harm occurring from unauthorised influencers communicating illegal financial promotions.

Other key points in the draft updated guidance include:

Compliance

When assessing the compliance of a promotion that is viewed via a dynamic medium (including, for example, multimedia or a number of different frames), the FCA will assess the promotion as a whole and take a proportionate view based on the number of frames and where information about risk is displayed within the promotion. 

  • The FCA has observed examples of firms lacking proper systems and controls to manage their online promotions and has reminded firms that use influencers to take appropriate steps to ensure the influencers understand the products they are promoting and the applicable rules. 
  • The FCA has also observed poor quality buy-now-pay-later (BNPL) products and warns firms promoting BNPL products to include the relevant risks for these products.  
  • The FCA reminds firms that memes, which are particularly prevalent in the crypto sector, are capable of being financial promotions.

Risk warnings

  • Firms should ensure that on platforms which use truncated text (such as “see more…”), the risk warning is clear and does not require click-through to access, to the extent applicable. If it is not possible to display the full risk warning without some of the text being cut off by truncation, firms should ensure as much of the warning as possible is shown.
  • The FCA has observed poor practice in relation to promotions on video-based social media platforms. In particular, the FCA considers that promotions which contain all the benefits within the video content, and the relevant risk warnings in the caption below, lack balance and are therefore likely to be unfair and misleading. 

Marketing strategies

  • Excessive targeting of promotions on social media channels from the same firm is unlikely to be considered as acting in good faith under the Consumer Duty, particularly because vulnerable customers may be more susceptible to the type of behavioural biases this marketing tries to exploit.
  • Because of the risks presented by sharing or forwarding, firms should consider whether social media is an appropriate channel to promote products or services with a restricted target market.
  • For the purposes of the FCA’s cold-calling rules, the FCA’s view is that “following” or “liking” a firm’s social media posts or presence does not in itself constitute “an established existing client relationship”.
  • Where an affiliate marketer is communicating a financial promotion containing a firm’s referral link without the firm having created or controlled the content of that communication, the FCA may consider that the firm is causing the communication to be made. Consequently, the firm would be liable for the compliance of that financial promotion.

Firms’ use of Influencers

  • Firms approving the financial promotions of influencers should pay particular consideration to the influencer’s audience demographics and whether they are likely to have an audience demonstrating characteristics of vulnerability.  
  • Firms approving the communication of influencers’ investment-related promotions should ensure they are playing an active role in ensuring the promotion remains compliant for its lifetime. 
  • Firms should ensure the influencer understands the products they are promoting and how to be compliant in their social media promotions.
  • A communication must be made “in the course of business” to be a financial promotion. The business test requires a commercial interest on the part of the communicator (but not necessarily a direct commercial arrangement or direct compensation). It is intended to exclude genuine non-business communications such as friends talking in the pub. Examples where influencers and unauthorised persons communicating financial promotions would, in the FCA’s view, likely be acting “‘in the course of business” for the purposes of the restriction on financial promotions include:
    • An influencer is directly compensated by a firm and issues posts encouraging followers to use the firm’s services.
    • An influencer is not currently employed by a firm but is promoting a firm’s services in order to generate revenue from a relationship with the firm in the future.
    • An influencer is promoting the services of a firm on a social media platform in a bid to acquire more views and attention for their content. They are then directly compensated by the social media platform for the views they acquire.
    • An influencer is promoting the services of a firm but only in an attempt to acquire more followers and likes. They will then use the increased followers and likes to ask for a higher fee in future brand deals with firms.
    • Person A is promoting chatroom B which they run in order to promote investment products. They have a commercial relationship with firm C who sells investment products.
    • Person A is promoting investment products on a social media platform to lead people to a chatroom centred around investing that they run or are involved in running. They gain a monetary benefit from the success of the chatroom, for example by selling courses about investing.
    • An influencer promotes the services of a firm through an affiliate link. When a consumer clicks the link and purchases the product the influencer will be directly compensated for their purchase.

Social media platforms

  • The regulator warns firms and influencers to be aware of social media platforms’ own policies relating to advertising, which will apply in addition to the FCA’s rules.
  • The FCA advises online platforms to consider how the financial promotion regime applies to them and ensure that they do not host illegal content. The regulator also notes that the Online Safety Bill, once passed, will place duties on search engines and social media sites to put in place proportionate systems and processes to mitigate the risks to users posed by the presence and dissemination of illegal content on their sites, including illegal financial promotions. 

This new draft guidance complements a wider programme of reform to the UK financial promotions regime, including a new “regulatory gateway” for authorised firms approving financial promotions, strengthened rules and requirements for the promotion of HRIs (including crypto), reforms to BNPL promotions, and a proposed general “anti-greenwashing” rule that will apply to all regulated firms. For more on these proposals, see our related client alert.

The draft guidance is also consistent with increased regulatory action we are seeing around the world concerning financial promotions involving influencers, including in the US, with even the SEC “keeping up” with Kim Kardashian.

Firms should consider this new draft guidance carefully, alongside any other international developments, when engaging with influencers and social media promotions and implement any necessary updates to their social media and influencer marketing governance and policies and contracts with influencers and agencies to ensure that their promotions don’t attract the wrong kind of attention.

Amaka Uzoukwu, Trainee at Baker McKenzie, contributed to this article.

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Sue is a partner in Baker McKenzie's IP, Data and Technology team based in London. Sue specialises in major technology deals including cloud, outsourcing, digital transformation and development and licensing. She also advises on a range of legal and regulatory issues relating to the development and roll-out of new technologies including AI, blockchain/DLT, metaverse and crypto-assets. Her IP and commercial experience includes drafting, advising on and negotiating a wide range of intellectual property and commercial agreements including IP licences and assignment agreements, long-term supply and distribution agreements. She also assists clients in preparing terms of business and related documentation for new business processes and offerings and coordinating global roll-outs. Sue is also a key member of our transactional practice, providing strategic support on the commercial, technology and intellectual property aspects of M&A transactions and joint ventures, including advising on transitional services agreements and other key ancillary IP and commercial agreements. Sue is ranked as a leading lawyer in Chambers for Information Technology & Outsourcing and Fintech Legal and in Legal500 for Commercial Contracts, IT & Telecoms, TMT and Fintech. Clients say of Sue "Sue is outstanding", "She is a really good and very committed lawyer", "Excellent…. Very capable, wouldn’t hesitate to use on IT/TMT/Outsourcing matters." Sue was named in the Standout 35 of the Women in FinTech Powerlist 2020.

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Mark heads the Financial Services & Regulatory (FSR) practice group in London and co-leads the FinTech group. He also acts as Chair of the FSR practice for the EMEA region and sits on the Global FSR Steering Committee. Mark is ranked as a Leading Individual in Legal 500 2022 for Financial Services (Non-Contentious Regulatory) and is individually ranked in Chambers 2022 for FinTech. He is described in these publications as being "very knowledgeable" and "very approachable" with "a wonderful range of FinTech experience" and as someone who is "clear, commercial and pragmatic and understands all the issues in detail." He has authored a number of articles and contributions for leading journals and other publications, most notably the Journal of International Banking and Financial Law, the International Guide to Money Laundering Law and Practice, and A Practitioner's Guide to the Law and Regulation of Financial Crime.

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Alysha Preston is an associate in the Firm’s Intellectual Property Practice Group. Alysha counsels domestic and multinational companies in navigating complex issues involving intellectual property and technology transactions, including in mergers and acquisitions. Alysha has been recognized by Super Lawyers and selected to the 2020 and 2021 New York Metro Rising Star list for Intellectual Property. Alysha also served as co-chair of the New York office’s Diversity and Inclusion Committee.

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Sarah Williams is an associate in the financial services practice in London. Sarah advises a broad range of clients on financial services legal and regulatory issues. Sarah's practice includes advising on the regulation of payment services and electronic money, investment firms and consumer credit providers and anti-money laundering compliance issues.

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Kimberly Everitt is Baker McKenzie's knowledge lawyer for Financial Services Regulation & Enforcement, covering the EMEA region, and brings over a decade of experience to the team in both knowledge and fee-earning roles. Prior to joining Baker McKenzie, Kim held roles specializing in contentious financial services regulation knowledge, and her fee-earning roles covered non-contentious regulation in the private equity and general financial services sectors.

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