Reality TV Stars, Holly Thompson, Biggs Chris, Jamie Clayton, Lauren Goodger, Rebecca Gormley, Yazmin Oukhellou, Scott Timlin and Eva Zapico face criminal charges for using their Instagram accounts to promote financial products. Having previously warned it would crack down on so-called "finfluencers", this marks the first prosecution brought by the Financial Conduct Authority (FCA) against influencers regarding alleged financial promotion breaches. They are due to appear in the Westminster Magistrates Court on 13 June 2024. We await the outcome of this hearing and will produce an update in due course.
Criminal Charges
It is alleged that Emmanuel Nwanze, who himself faces charges of running the unauthorised investment scheme to which the financial products relate, paid the above individuals to promote the @holly_fxtrends Instagram account to their combined 4.5 million followers between 2018 and 2021. The @holly_fxtrends Instagram account concerned contracts for difference or CFDs relating to price movement in foreign currencies – a type of high-risk derivative contract. In 2019, financial regulators imposed restrictions on the selling and marketing of CFDs and warned that 80% of customers lost money when investing in the highly leveraged instruments.
In legal parlance, the above persons are accused of contravening section 21 of the Financial Services and Markets Act 2000 (FSMA) in that they issued unauthorised communications of financial promotions - a criminal offence carrying a sentence, upon conviction, of a fine and/or imprisonment of up to 2 years.
What is the financial promotion restriction?
S21 of FSMA restricts a person, in the course of business, from communicating an invitation or inducement to engage in investment activity (or claims management activity) unless that person is an "authorised person", the content of the financial promotion has been approved by an "authorised person" or the financial promotion is exempt under the Financial Promotions Order (FPO Order) 2005. Examples of exemptions under the FPO Order 2005 include where the product is being marketed to a high net worth individual (HNWI) or a sophisticated investor.
For the purposes of the exceptions above, an "authorised person" is a person who has permission from the FCA to carry on one or more regulated activities. A regulated activity includes, amongst others, dealing, managing or advising on investment products, like shares, bonds or derivatives.
The objective of s21 FSMA is to protect consumers by making sure that all communications are fair, clear and not misleading. Communications (including financial promotions) that fail to meet that threshold, may lead consumers to buy or invest in the wrong product.
Regulatory Gateway
The scope of persons or firms authorised to approve financial promotion has been narrowed following the recently enacted FSMA 2023. Under FSMA 2023, firms seeking to approve the financial promotions of unauthorised firms must apply to the FCA for permission to approve the particular type of financial promotion. Previously, any authorised firm could approve any financial promotion resulting in the risk of unsuited firms approving financial promotions for which they lacked the relevant expertise.
What does it mean to communicate a financial promotion?
In line with the FCA's objective of protecting consumers under the financial promotion regime, the term communication is intentionally left undefined in FSMA. Its meaning is therefore very broad and hence the imparting of information in any form will likely be caught by s21 FSMA. According to the FCA however, in order to communicate, a person must take some active steps to make the communication and so each case with its specific facts will have to be considered separately. Importantly, under s21(13) FSMA, causing a communication to be made by another person is also caught by s21. Therefore, even if not making the actual promotion themselves, the person causing that communication to be made, will also be subject to the financial promotion restriction.
Get in Contact
The charges levelled against the above-mentioned persons serves as a warning to anyone considering getting involved in any type of promotional material on social media relating to financial products. In March this year, in an effort to “address emerging consumer harm we’ve seen arising from the use of social media”, the FCA published final guidance on financial promotions made on social media, which can be accessed here and which people are encouraged to read.
On the flipside of the coin, individuals that are considering making an investment into a financial product should seek appropriate professional advice before investing.
If you have any questions or would like to seek legal advice on financial promotions or anything related, please get in touch with Keith Lassman (Keith.Lassman@howardkennedy.com), or Gabi Luknar (Gabi.Luknar@howardkennedy.com)
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