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The draft guidance will be relevant to: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• The draft guidance clarifies how the principle of “required information” will apply to different social media platforms.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• The draft guidance addresses the harm arising from influencers communicating approved financial promotions, particularly for firms approving communications for high-risk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• The draft guidance also addresses harm occurring from unauthorised influencers communicating illegal financial promotions.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.