BACKGROUND
In 2021, ASIC conducted the ASIC young people and money survey. They found that 33% of 18–21-year-olds follow at least one financial influencer on social media. The survey also found that another 64% of young people reported changing at least one of their financial behaviours because of following a financial influencer.
It has become a trend for some licensees to use financial influencers, so this paper outlines ASICs position on social media influencers and the licensees who use them.
MONITORING
Financial services laws protect and promote market integrity, they set minimum requirements and provide protections for investors if something goes wrong.
ASIC monitors select online financial discussions by influencers that feature or promote financial products for any misleading or deceptive representations, or unlicensed financial services. They take enforcement action where it is in the public interest to do so.
WHERE IS THE LINE
An influencer that discusses financial products and services online (or promotes affiliated links) must make sure that they understand the legal obligations to determine if:
- they are providing financial product advice or arranging for followers to deal in a financial product. To carry on a business of providing financial services, they must hold an AFSL (unless exempt or an authorised representative of an AFSL holder).
- the content is accurate and balanced – misleading online posts may be breaking the law.
Financial Product Advice: If an influencer presents factual information in a way that conveys a recommendation that someone should, or should not, invest in a product or class of products, they could be in breach of the law by providing unlicenced financial product advice. Similarly, if an influencer receives benefit or payment for comments in relation to financial products, they are likely to be providing financial advice as it indicates an intention to influence the audience.
Dealing by Arranging: arranging for a person to deal in a financial product, such as buying or selling a financial product, is a financial service. An influencer actively involved in making the transaction happen through unique links or special offers is likely to be considered dealing by arranging.
Misleading or Deceptive: Any statement made by an influencer must be true, accurate and able to be substantiated. Even if the intention is not to mislead people, the overall impression of the post when viewed must be considered. Statements such as ‘significant returns’, ‘risk free’ or any omissions of potential risks may be considered to be misleading if they are not able to be substantiated.
USING AN INFLUENCER
AFS Licensees may be liable for misconduct by influencers you use, so make sure consider:
- Due diligence: If the influencer is acting on your behalf, and is therefore your ‘representative’ for the purposes of the financial services laws, this triggers other obligations.
- Risk Management: put in place appropriate risk management systems and monitoring processes to make sure the influencers you are using are not providing unlicensed financial services.
- Compliance: have sufficient compliance resourcing to monitor the influencers you use.
- Considerations: consider if you have engaged an influencer to promote a financial product that is subject to the design and distribution obligations and whether you have reasonable steps so that the influencer only promotes the product to consumers in the target market.
TIP FOR USING SOCIAL MEDIA
- Only Representatives approved by a Director may use social media to comment on behalf of the business
- It is recommended that approved Representatives ‘befriend’ the approving Director to enable monitoring and supervision on official and unofficial blogs and posts
- Representatives must clearly identify themselves in the correct capacity (e.g., representatives, authorised representatives, employees)
- If any Representative notices misrepresentations made about the business, they must notify a Director immediately so that appropriate action can be taken
- Representatives must ensure that their online activities do not interfere with their job/role responsibilities and their commitment to co-workers and clients
- When referencing other sites or influencers, Representatives must ensure that a disclaimer is also posted stating that they do not endorse or take responsibility for content on these other sites
- Representatives have a right to privacy and as such they must also respect the privacy of our customers. Therefore, Representatives are prohibited from posting anything that may violate another employee’s or a client’s right to privacy
- Representatives must ensure their posts do not damage the reputation of the Licensee
- Representatives are personally responsible for their own posts, and
- Misuse of social media may result in disciplinary action including termination and / or revocation of authority.
CONCLUSION
Carrying on an unlicensed financial services business is an offence under the Act, unless authorised as a representative of a licensee or relying on an exemption. It is crucial that influencers who discuss financial products and services online comply with the financial services laws. If they don’t, they risk substantial penalties and may put investors at risk. Unlicensed activity can also be reported to ASIC so they can consider appropriate regulatory action.
For more information, refer to INFO 269 Discussing financial products and services online.
GRC ESSENTIALS CAN HELP
If you require any assistance, we can offer training for your personnel and guidance for your Social Media compliance questions. Please don’t hesitate to contact us if you have any questions or if we can help you with any of your compliance matters.