FCA Finalises Updated Guidance On Financial Promotions Via The Social Media

The FCA has finally finalised its updated guidance on financial promotions via the social media, basically confirming the draft on which it consulted in July 2023.

Perhaps the only real changes are to clarify where a foreign promotion may be capable of having an effect in the UK and so be subject to the UK restrictions.

The finalised guidance explains:

• what a financial promotion is
• the various financial promotion rules and where they apply
• the need for each communication to be 'standalone compliant'
• certain information must be given 'prominence'
• where the social media may or may not be suitable for financial promotions
• restrictions on high risk investments
• certain prescribed risk warnings
• marketing strategies in the context of the consumer duty, sharing/forwarding promotional communications and affiliate marketing
• restrictions on the use of influencers and social media platforms.

This post summarises the FCA's proposed new social media guidance for information purposes only. If you require legal advice, please get in touch.

Anti-Greenwashing Guidance

Source

The UK's Financial Conduct Authority is proposing guidance for firms making sustainability claims in their promotional material, to avoid exaggerated and misleading messages. This includes situations where non-FCA authorised firms are getting promotions approved by FCA-authorised firms. The guidance will be finalised in Q1 2024, to take effect with the anti-greenwashing rule on 31 May 2024.

References to 'sustainability' must be:

1. Correct and capable of substantiation;
2. Clear and presented so as to be understood;
3. Complete and not omit/hide key information;
4. Take into account the full lifecycle of the product;
5. Fair and meaningful in relation to any comparisons made.

The Anti-greenwashing rule provides:

ESG 4.3.1 R (1) This rule applies to a firm (whether it is undertaking sustainability in-scope business or not) which: 

(a) communicates with a client in the United Kingdom in relation to a product or service; or 

(b) communicates a financial promotion to, or approves a financial promotion for communication to, a person in the United Kingdom.

(2) A firm must ensure that any reference to the sustainability characteristics of a product or service is: 

(a) consistent with the sustainability characteristics of the product or service; and  

(b) fair, clear and not misleading.

FCA's Final Warning To Crypto Firms On Marketing and Money Laundering

The UK's Financial Conduct Authority has issued a "final warning" to all firms marketing cryptoassets to UK consumers, including firms based overseas, that it will strictly enforce the new 'financial promotions' restrictions that take effect on 8 October 2023. Among the FCA's concerns, in particular, is the fact that overseas firms with UK customers have failed to engage with the process of introducing the restrictions. Of 150 overseas firms surveyed by the FCA, only 24 responded. The FCA has updated its Warning List accordingly. In addition to criminal prosecutions for breaching the restrictions, the FCA envisages actions to recover the proceeds of crime from those who receive money from offending firms, as well as prosecutions for related money laundering offences. I've summarised the FCA's concerns below for information purposes. This note does not constitute legal advice. If you need advice on any of the matters raised, please get in touch.

What is a financial promotion?

A 'financial promotion' basically means any invitation or inducement to engage in a regulated activity. This could be a feature of any customer communications, marketing activity, social media posts, advertising or part of sponsorship arrangements, for example. 

What is the main restriction?

Firms lacking the appropriate authorisation or registration must only communicate to UK residents financial promotions that either fit an exemption or have been approved by an FCA authorised firm (who have to comply with their own financial promotions rules). 

The FCA expects authorised firms who are considering approving cryptoasset financial promotions to notify the FCA before doing so.  

Depending on the type of product and related activity involved, there may be different promotional rules that the approving firm must check that the promotion complies with before giving approval.

Crypto firms which cannot legally communicate financial promotions to UK consumers will be expected to have robust processes to prevent UK consumers accessing and responding to their financial promotions, including geo-blocking UK consumers, clear statements that their services are not available to UK residents, on-boarding and KYC/AML checks for UK addresses, preventing the use of UK-based payment methods, and ongoing monitoring. 

What happens if there's a breach?

Breaching the financial promotions restrictions is a criminal offence. 

In turn, the FCA considers that any benefits obtained from illegal financial promotions could be criminal property, so anyone receiving or dealing with such proceeds of crime may be implicated in money laundering. Some may also commit an offence where they breach requirements to report suspicious activity. In this context, the FCA will be looking at funds flows such as: 

• the fees generated by app stores, social media platforms, search engines and domain name registrars from hosting illegal financial promotions; 
• investments made due to illegal financial promotions; 
• receipt of payments under advertising, co-marketing and sponsorship deals; and 
• fees charged by payments firms or other intermediaries for services to unregistered cryptoasset businesses that generate income through illegal financial promotions. 

The FCA would likely begin its enforcement activity with an alert on the FCA website and by seeking to remove or block offending promotions, in addition to targeting intermediaries, social media platforms, search engines, app stores, domain name registrars, hosting providers and payment service providers who support the activities of offending firms.

What if I have UK residents as customers right now?

The FCA explains that firms who are at risk of non-compliance may communicate with their existing UK consumers for a limited time but only to allow those customers to transfer, withdraw or sell their existing assets, which must be communicated in a way that does not breach the financial promotion requirements and clearly explain how consumers can use each option and any associated fees, costs and charges. The FCA considers it unsustainable for unregistered cryptoasset firms to maintain a longer-term relationship with UK consumers who cannot be shown financial promotions. 

This note does not constitute legal advice. If you need advice on any of the matters raised, please get in touch.

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FCA Updates Social Media Guidance To Cover Crypto, New Platforms And Influencers

Hard on the heels of the EU adding a chapter on online marketing of financial services (including 'dark patterns' and influencers) to the Consumer Rights Directive, the UK's Financial Conduct Authority is also updating its 2015 guidance on financial promotions in the social media to address influencer marketing. This post summarises the FCA's proposed new social media guidance for information purposes only. If you require legal advice, please get in touch.

In substance, the FCA's guidance remains the same but adds specific guidance on 'new' design features and channels, such as influencers; and explains the impact of the new Consumer Duty.

The core principles of the FCA's view of social media remains, of course, that financial promotions must be fair, clear and not misleading as well as "standalone compliant": each stage of a financial promotion must comply with the financial promotion rules relevant to the type of business being promoted. Certain features of the social media have always raised issues, whether it be character limits, small or scrolling banners: 

When assessing the compliance of a promotion that is viewed via a dynamic medium (such as Instagram stories), we 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. To meet our expectations regarding prominence, firms should aim to display the key information about risk upon a consumer’s first interaction with the promotion and the warning should be displayed for a sustained period.

Complex services, like debt counselling may not lend themselves to social media promotion at all.

Use of memes may also be inappropriate or impracticable, given the nature of the invitation or inducement in the meme and/or the need for risk warnings and other information to be prominent and 'balanced'.

The Consumer Duty raises fresh considerations:

Firms advertising using social media must consider how their marketing strategies align with acting to deliver good outcomes for retail customers. All the cross-cutting rules will be relevant to social media promotions, and firms should take into account how promotions that do not support consumer understanding may cause consumers to buy products that are unsuitable for them, leading to foreseeable harm... 

Firms’ communications should support and enable informed decision-making, equipping consumers with the right information in a timely way. Firms must also consider how they tailor communications to account, for example, for the likely audience on social media and the features of different platforms.

Firms remain responsible for any original non-compliance, even if a promotion is forwarded or shared (whether as part of a formal affiliate programme or by random recipients). This can itself trigger a breach of financial promotions rules (e.g. forwarding to the wrong type of investor). For that reason, the social media may not be an appropriate channel at all.

And just because somebody 'likes' an ad or 'follows' the firm in the social media does not mean they are no longer protected from 'cold calling':

...a financial promotion is likely to be non-real time if it is made or directed at more than one recipient in identical terms, creates a record which is available to the recipient at a later time, and is made by way of a system which in the normal course does not enable or require the recipient to respond immediately. This means channels like live-streams or gaming steams are likely to be considered a non-real time promotion and be subject to the full scope of our financial promotion rules.

A specific chapter of the guidance covers influencers, who have also been the target of the Advertising Standards Authority.

This post summarises the FCA's proposed new social media guidance for information purposes only. If you require legal advice, please get in touch.

UK Consults On BNPL Regulation

Further to my note in June, the UK Treasury is now consulting on the enabling legislation necessary to narrow the exemption for Buy Now Pay Later (BNPL) products, paving the way for greater supervision of the sector by the Financial Conduct Authority. I've included a quick summary of the provisions below. If you need assistance in understanding the potential impact of the proposed regulatory changes, please let me know.

Basically, the scope of consumer credit regulation is being expanded to include BNPL agreements offered by lenders but not by suppliers directly. The government had intended to regulate all BNPL agreements provided by suppliers either online or at a distance, but this was found to disproportionately impact many types of arrangement where there is little, if any, evidence of consumer detriment.

In effect BNPL agreements will be regulated where they are 'borrower-lender-supplier' agreements for  fixed-sum credit (the existing 'running accounts exemption' is not affected) to individuals, small partnerships etc., which are: 

• interest-free; 
• repayable in 12 or fewer instalments within 12 months or less; 
• the credit is provided by a person that is not the provider of goods or services which the credit agreement finances (i.e. third-party lenders); and 
• not specifically exempt under other consumer credit exemptions (plus a new, related exemption). 

There's an 'anti-avoidance' measure to capture agreements where the merchant has an arrangement with the third-party lender to sell the goods to the lender at the point when the agreement is taken out (seeking to turn the lender into a supplier). 

Trade credit and invoicing arrangements will remain exempt, but new specific carve-outs have had to be made to finance insurance contracts/premiums; registered social landlords to their tenants to finance the provision of goods and services; and where the borrowers are employees and which result from an arrangement between their employer and the lender or supplier.

The relevant agreements will qualify as regulated credit agreements within the consumer credit regime under the Regulated Activities Order (RAO). Firms offering those agreements and related regulated activities will need to be authorised and supervised by the FCA, with complaints referable to the Financial Ombudsman Service. 

These agreements will not benefit from lighter regulation that applies to 'small agreements' but will be spared certain pre-contract explanations under the Consumer Credit Act 1974 (CCA) in favour of more proportionate FCA disclosure rules. Consumers are also spared a deluge of information because certain other distance marketing disclosures won't need to be made for these agreements by unauthorised brokers where the information has already been provided by the authorised lender.

Those introducing borrowers to lenders to obtain regulated BNPL agreements will not need to be authorised for credit broking unless conducting that activity in the borrower's home.   

Advertisements and other 'financial promotions' communicated by unauthorised firms for regulated BNPL agreements will need to be pre-approved by an FCA authorised firm (which will not include a firm acting as a payment or e-money institution).

The new regulations won't apply to relevant agreements entered into prior to the changes taking effect; and there are transitional arrangements to enable firms to carry on certain regulated activities in relation to regulated BNPL agreements for a limited time to allow them to get properly authorised, but the duration is a matter for the FCA. It's worth noting, however, that any business that does take advantage of the 'temporary permission regime' must comply with the law and FCA rules applicable to consumer lending (or exercising a lender's rights) and credit broking (if visiting borrowers' homes). That is unlike previous 'grandfathering' type arrangements, where firms could continue as they were until authorised; and potentially problematic, as any unregulated lender offering BNPL today would likely face a very steep climb to operating on a regulated basis.  

It is also left to the FCA to determine how its rules on credit checks, which could prove a thorny issue to the extent we are focusing on borrowers who can't afford the price of fairly low value consumer items. 

But there remains uncertainty over the extent to which the form of agreements and post-contractual notices will be prescribed.

The limits for the application of 'section 75' CCA liability for suppliers will not be altered (£100 to £30,000).

If you need assistance in understanding the potential impact of the proposed regulatory changes, please let me know.

UK Regulatory Warns Again On Cryptoasset Promotions

The FCA has explained again that there are currently only three ways to communicate cryptoasset promotions to UK consumers, with a fourth channel pending:

1. via an FCA/FSMA authorised firm [which does not include an e-money or payment institution for these purposes]. 
2. via an unauthorised firm but approved by an FCA authorised firm [the govt is proposing a regulatory 'gateway' for authorised firms that wish to approve financial promotions for unauthorised firms]. 
3. a cryptoasset business registered under money laundering regulation with the FCA (cryptoasset exchange and custodian wallet providers), communicating its own promotions [under a pending exemption].
4. the promotion otherwise complies with the terms of an exemption in the Financial Promotion Order.

Even with the new route, promotions not made using one of these channels will constitute a criminal offence punishable by up to 2 years imprisonment.

This post is for information purposes and does not constitute legal advice. Please let me know if you need legal assistance in this area.

UK Marketing Rules For Crypto: Muddy Waters?

Amid the sound and fury of crashing crypto businesses you could be forgiven for having forgotten that the UK government was 'busy' consulting on extending its rules for marketing financial services to cover certain 'cryptoassets'. Those rules are still not published, but we are told today they are on the way. There will then be a six month transition period before they take effect. But beware a few twists...

Qualifying cryptoassets

This might change, but for now the government has broadened the scope of ‘qualifying cryptoasset’ to mean 'any cryptographically secured digital representation of value or contractual rights which is fungible and transferable'. It will not matter, therefore, whether or not the cryptoasset is based on distributed ledger technology (DLT). That technology-neutral approach is consistent with the proposed regulatory treatment of stablecoins used as a means of payment (or 'digital settlement asset').

The definition will specifically exclude: 

• investments already 'controlled' under financial promotions rules;
• electronic money under the Electronic Money Regulations 2011;
• central bank (digital) money; and
• cryptoassets that are only transferable to one or more vendors or merchants in payment for goods or services, such as tokens used as travel passes, lunch passes, and supermarket loyalty schemes which happen to be cryptographically secure.  

The government has decided to retain the requirement for a qualifying cryptoasset to be 'fungible', on the basis that non-fungible tokens (NFTs) may represent non-financial services products, the NFT market is evolving rapidly and "the government does not yet have sufficient information on risks and use-cases". But it might act later. 

'Wrapping' a fungible token inside an NFT is risky because that might not remove its fungibility and involves a case-by-case assessment - fungibility is not a feature of the asset itself but the context (in some circumstances they might be treated as interchangeable).  

Whether tokens that might have several uses (‘hybrid tokens’) have at least one use that meets the test of a 'qualifying cryptoasset' (or another controlled investment) will be judged at the time the promotion is issued: 

"unregulated cryptoassets such as utility and exchange tokens into the scope of the financial promotions regime (provided they fall within the definition of ‘qualifying cryptoasset’), and security tokens are already captured as controlled investments."  

Note that if a token will qualify as a security token at any time in its lifecycle then it must be treated as one from the outset. 

Controlled activities 

A relevant 'financial promotion' is one that induces someone to engage in a 'controlled activity' in relation to a qualifying cryptoasset. For this purpose there will be no new specific "controlled activities" that will apply only to qualifying cryptoassets. So the activities that promotions must relate to are: 

• dealing in securities and contractually based investments 
• arranging deals in investments 
• managing investments 
• advising on investments 
• agreeing to carry on specified kinds of activity 

The government considers the restrictions would not apply to promotions that simply say that a retailer/seller is willing to accept (or offer) qualifying cryptoassets in exchange for goods and services (e.g. a sign at a retail checkout that says ‘we accept crypto’). Since that is not an investment activity of the "controlled" kind listed above, it is simply out of scope entirely and it is unnecessary to specifically exempt it. 

Exemptions

Whether the usual array of exemptions apply to qualifying cryptoassets and related controlled activities will be consistent with the way that the usual exemptions apply more broadly, so there will be no different approach specifically for cryptoassets.

This post does not constitute legal advice. If you need any assistance, please let me know. 

British Red Tape To Increase Cost Of UK Financial Promotions/Products

In its new Financial Services Bill (explanatory notes here) the UK government proposes a new bottleneck 'regulatory gateway' for the approval of financial promotions that must raise the cost of affected financial products and services.

A "financial promotion" is basically any communication that contains an invitation or inducement to engage in a financial product or service. These could be ads in any media; marketing brochures; direct mail; or social media posts. 

The advertiser could be either a firm authorised by the Financial Conduct Authority or the Prudential Regulatory Authority, or a firm that is unauthorised. 

Where the intending advertiser is unauthorised, existing UK regulation requires that firm to have the financial promotion approved by any firm that is authorised by the FCA or the PRA (unless the promotion is otherwise subject to an exemption).  

There is no specific suitability test that authorised firms must meet to be able to approve promotions for unauthorised firms; and they are not required to notify the FCA when they are approving the financial promotions for unauthorised firms. But it is a criminal offence for an unauthorised firm to communicate a financial promotion that isn't either approved by an authorised firm or exempt; and any resulting contract is unenforceable against the customer. In addition, authorised firms have a responsibility to ensure that any financial promotions they approve are compliant with relevant promotional rules, so they would be foolish to approve a financial promotion in an area in which they have insufficient expertise; or without undertaking sufficient due diligence. The FCA has issued guidance on approving financial promotions and they are also advertising standards codes supervised by the Advertising Standards Authority.

Yet, the FCA claims that it often only becomes aware of a product being promoted by an unauthorised firm after it has caused harm, as happened with unlisted debt securities or 'mini-bonds', for example. 

To address this problem, the Financial Services Bill establishes a regulatory ”gateway” through which authorised firms must obtain the FCA's permission before being able to approve the financial promotions of unauthorised firms. The FCA will be able to judge each firm's suitability and limit the types of promotions firms will be able to approve. An authorised firm will only be able to approve a financial promotion within the scope of a permission granted by the FCA or within an exemption.

The notes to the Bill already state that this will reduce the number of authorised firms that are able to undertake such approvals. But it omits to point out that the process by which authorised firms must demonstrate that they meet the FCA's authorisation and suitability requirements must also raise the cost of granting approvals. Constraining both the number of available firms and raising their administrative costs must in turn raise their fees for approving financial promotions, and ultimately raise the cost of the financial product or service being advertised, unless the authorising firms simply bake this cost into their general overhead. But even if these costs are restricted to approvals for unauthorised firms, we cannot foresee what new types of products might be adversely impacted by these constraints/costs in the future; and/or the FCA may well stifle innovation, as has been alleged in relation to what it has wrongly labelled 'high risk investments'. with new rules recently announced here. 

Trouble At The FCA's Perimeter

The UK's Financial Conduct Authority is often charged with an apparent failure to act amidst a 'scandal' of some description. Its usual defence is that the activity in question lay outside the scope or 'perimeter' of what the FCA is empowered to supervise. The FCA also publishes a "Perimeter Report" pointing out issues that it sees outside the perimeter that it considers it should be given powers to address. Needless to say, that's a lot like having your cake and eating it, but so it goes. Anyhow, aside from the usual suspect of dodgy financial advice through appointed representatives, two areas leapt out at me among those identified in the latest Perimeter Report:

Financial promotions/marketing: The FCA believes that the exemptions for unauthorised persons to market investments to 'high net worth' and 'sophisticated' investors under the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (SI 2005/1529) (FPO) are no longer fit for purpose, so there need to be significant changes - including the nature of the thresholds for consumers to qualify and self-certify that they qualify as either high net worth or sophisticated. 

Cryptoassets: The FCA is seeing the evolution of 'complex business models' presented as ways for customers to generate returns from cryptoasset holdings, which its believes may need further regulatory or legislative action to address. I'd say that's the understatement of the century, given the recent shriek of alarm from the Bank of England about the threat to financial stability from cryptoassets. I'd say investors are more likely to understand that 'unbacked' cryptoassets (e.g. bitcoin) are very high risk investments, but vulnerable to being misled to believe that a cryptoasset is somehow "backed" by other assets (i.e. 'stablecoins') or somehow include rights to other assets or income.

The problems identified here are likely to have arisen from investigations or complaints where the FCA would particularly like to have acted but didn't immediately have all the powers it would have liked. Therefore, it also seems likely that these areas will be the subject of future enforcement if those powers are forthcoming...

Extension of FCA Principles And Marketing Rules To Payment Service Providers

From 1 August, the Financial Conduct Authority will begin to enforce its Principles of Business and certain rules on marketing and communications against the payment service providers that it regulates.

The FCA explained its approach in a policy statement earlier this year, but it was likely put off as a summer project, and Brexit will have been a distraction for many. At any rate, chapters 2, 3 and the rules in Annexes A-C are the key parts to read.

Some Key Points

Because many PSPs also provide unregulated services that are allied to their regulated activity (e.g. gateway services and other "technical services" as well as unregulated foreign exchange and e-commerce services), it's important to note that the FCA's high level Principles will also apply to unregulated activities that are "connected" to regulated e-money or payment services. The FCA is refusing to clarify exactly what that means, since the list is long, and this may lead to 'regulatory creep' to the extent PSPs err on the side of caution. 

Equally, a PSP's compliance with the Principles (and even the marketing rules) can be affected by the activities of other group companies - e.g. faulty centralised fraud or risk management systems or other outsourced support services; or misleading ads for an unregulated service that is deemed to be "connected" with the PSP's regulated service.

The FCA is particularly anxious about the misleading promotion of currency transfer services (and 'connected' foreign exchange services, even if unregulated).

The FCA does not care that there is overlap with other advertising and communications requirements - as there is for banks (the 'new' rules on marketing and communications are created by applying the FCA's existing Banking Conduct of Business (BCOB) rules to PSPs). But the FCA does confirm that these rules cannot cut across EU-derived regulations (wither Brexit?).

Next Steps

The extension of the Princples and the marketing rules to PSPs means they will likely need to update various in internal policies and procedures, e.g. those dealing with: 

• Governance (reporting lines and responsibilities to control operational risks);

• Marketing and communications (the policy and procedures for sign off on your ads and communications to ensure they are clear, fair and not misleading) particularly for payment services involving currency transfer services - and any "connected" unregulated activities; and

• Treating Customers Fairly (with appropriate cross references to other policies). 

That summer project starts now!

FCA Goes Social

The Financial Conduct Authority has made a huge effort to shrug off the image of its predecessor, and its latest guidance on social media and customer communications is another case in point. The FCA goes to far greater lengths than the FSA to understand the activities that it's regulating, and it has properly recognised the benefits to firms using the social media, not just the risks. There are some big concerns in here. But overall it's a helpful steer on how to market financial services in the social media, rather than just another regulatory minefield.

Now, about those 'big concerns'...

The word "consent" does not appear in this document. Nor do the words "data protection". The word "privacy" appears once, however, in a footnote which helpfully refers to the Information Commissioner's guidance on Direct Marketing. That's really the only nod to the many other requirements that application developers need to consider when producing financial services - something we've been focusing on intently at the Society for Computers and Law, for example. That's a particular concern, when section 1.8 of the guidance recommends "the use of software that enables advertisers to target particular groups very precisely" without so much as a footnote. If this is a tip to use Big Data tools, cookies and so on to engage in behavioural targeting of advertising, then firms will need a lot more help if they are to expected to do so appropriately.

Of equal concern is the FCA's decision to 'gold-plate' its guidance to the level of compliance required by the European directives on consumer credit and mortgages - another example of the European "regulatory creep" that blights the UK's landscape and is the source of so much talk of a "Brexit":

"The same constraints do not exist in other areas, but we think it is important to adopt a common approach across all the sectors we regulate, and across all media. To do otherwise would create a more complex and less certain regime, which would impose additional costs and which firms and consumers would find more difficult to navigate."

The problem with this approach is that not only do UK officials have a tendency to over-comply in this fashion, but they also take a literal approach to the interpretation of European law, rather than the purposive approach that European law itself dictates. So the UK invariably implements European edicts far more restrictively than, say, Greece or even France (historically the country most sued for failing to implement European laws, but here's the league table). 

Another problematic area is the guidance on using an image to convey a risk warning where a character limit would make it impossible to include it as text. While appearing to recommend this approach, the FCA then points out (on page 8) that Twitter settings, for example, allow users to ensure that images appear as a link, rather than being automatically displayed. So, risk warnings or other required information cannot appear solely as an image where such user features are present. This is explained a little more in section 7 of the Annex, which also mentions that some social media services limit the amount of text in images or crop them in unpredictable ways... In other words, images are not really much of a solution, even though they feature heavily throughout the FCA's examples.

Retweets and other sharing of financial promotions by customers and employees is another area for firms to consider a bit more carefully. There is some discussion of that (under "Other regulatory issues" on page 11), but it's obviously at the core of why firms would use the social media over traditional advertising channels. Basically, you can't rely on your employees to do the dirty work for you, at least not in the course of their employment (a slippery slope); and just because they or your customers are prepared to make a claim, doesn't mean that the firm can share it with impunity.

While it's refreshing that the FCA does not consider a tweet, for example, to be a real-time promotion, it doesn't mention the use of instant messaging features, or direct messaging. Although the guidance does mention that a customer 'following' a firm's account or 'liking' its material does not amount to an express request to receive real-time promotions to get around the ban on 'cold-calling'.

Finally, record-keeping is a key concern here. As the FCA points out (on page 14), you can't rely on the social media platforms to retain a copy of your promotional material. So firms need to have their own records of tweets etc., and the related compliance sign-offs.

No doubt the FCA's guidance will evolve in the light of these concerns over time - not to mention the guidance from the Information Commissioner!