Matt Hansen 

We all know that young people traditionally do not like listening to authority figures, and prefer to listen to their peers online. This phenomenon has, in part, fueled the rise in popularity in cryptocurrencies, and other non-traditional investing schemes such as NFTs and others, and especially in the current economic and social environment. At the same time we have seen the rise of the social media influencer, with well known operators in many industries including cosmetics, health food, parenting and finance. Recent figures from the Australian Securities and Investment Commission (ASIC) also indicate that there is a rise in young people following influencers that discuss financial products, dubbed “Finfluencers”. This has led ASIC to publish a series of guidelines to warn such influencers of their responsibilities under Financial Services Regulations (FSR) as well as provide guidance to Australian Financial Services (AFS) licensees as to how to safely engage with such influencers. 

What do the guidelines say about influencers that discuss financial products?

ASIC’s guidelines are available at https://asic.gov.au/regulatory-resources/financial-services/giving-financial-product-advice/discussing-financial-products-and-services-online/. But, why are these guidelines even necessary? In short, one of ASIC’s regulatory concerns is that the investment community is properly regulated, and those providing advice are not able to hide in the Wild West of the internet.

So, influencers are now put on notice that when they discuss financial products and services, or engage in discussion online or promote affiliate links, they must make sure they understand their legal obligations.

Influencers must consider whether or not they need an AFS licence. If an influencer is providing financial product advice or arranging for their followers to deal in a financial product, they must hold an AFS license, unless they have an exemption or are an authorised representative of an AFS licence holder. It is easy to see why this is an ASIC priority – if influencers were able to avoid legal obligations by posting in this manner online, the risk to vulnerable people online would be profound.

Influencer content must also be accurate and balanced so that it is not regarded as misleading and deceptive. Influencers must ensure they are familiar with the applicable regulations and not provide any guidance or advice that might contravene these regulations.

Influencers should also undertake due diligence on who is paying them, including ensuring that they know their disclosure requirements and have a well-documented agreement.

Examples of problematic activities discussed in the guidelines include:

1. Discussing the pros and cons of share investment vs exchange traded funds, or encouraging investment in one asset class versus another, without an AFS licence;
2. Providing a link to sign up to a financial product (without a licence) and not disclosing the existence of any fee or commission arrangement;
3. Promising substantial returns on investment without a clear basis, or describing investments as risk free or low-risk, without giving due consideration to an individual’s risk appetite or circumstances.

Influencers should obtain legal advice if they are unsure of their obligations.

What should AFS Licensees be aware of when engaging an influencer?

The licensee risks being liable for misconduct due to the actions of the influencer, so it is imperative that any financial services provider engaging an influencer as part of a campaign does their due diligence. Licensees should remain aware that certain obligations (including ensuring adequate training and compliance with the financial services laws) can be triggered if the influencer is acting as a ‘representative’ for the purposes of the financial services laws, which will likely be the case if the influencer is posting regarding a financial services product.

Licensees should also put in place appropriate risk management systems and have sufficient monitoring in place to make sure the influencers are not providing unlicensed financial services advice or incorrect information.

How does this impact my business? 

If you are an agency that has been asked by a financial services client to engage an influencer, or if you are a financial services provider, you should ensure that any engagement with an influencer is in writing, and clear guidelines are provided to the influencer as to the types of content they are allowed to generate. It is imperative that all materials that are published are appropriately vetted for financial services regulatory compliance. Also, you must ensure that no financial advice is provided by the influencer unless they hold an AFS Licence or can be covered as a representative of someone who is an AFS Licensee, and ensure that all financial information you provide the influencer is correct and capable of substantiation. Lastly, ensure you and the influencer are aware of any payment disclosure requirements, and also bear in mind the general advertising disclosure requirements set by the Australian Association of National Advertisers (AANA) in regards to influencers.

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If you would like further information on ASIC’s guidelines for influencers and how it impacts on you or your business, please contact one of our experts below.