In the ever-evolving financial services landscape, the role of referrers and financial influencers (‘finfluencers’) has become increasingly prominent, especially for start-ups. As these entities commonly refer their customers to, or act as influencers for, other financial service providers, it is crucial to consider whether these finfluencers and referrers need to hold an Australian Financial Services (AFS) licence.
Understanding Referrers and Finfluencers
Referrers are also known as affiliates, referral partners, or finfluencers. They play a pivotal role in promoting financial products through various channels, including:
- social media;
- video streaming; and
- podcasts.
AFS licensees often set up affiliate or referral links unique to each referrer. They usually give monetary rewards to the referrers based on successful referrals measured by click-throughs or sign-ups via those unique links. A key risk in all of these arrangements is that the referrer may be providing a financial service without the authorisation to do so.
Providing Financial Product Advice
One of the primary regulatory considerations for referrers and finfluencers is whether their activities constitute “financial product advice.” The Corporations Act 2001 mandates that those engaging in a financial services business in Australia must hold an AFS licence unless exempted. Providing financial product advice includes giving recommendations or opinions intended to influence decisions related to financial products.
Finfluencers and referrers should exercise caution. Even seemingly innocuous statements, such as praising a financial product’s trading experience, may inadvertently be deemed financial product advice.
To mitigate these risks, referrers and finfluencers can structure their referrals in a way that aligns with the exemption in regulations 7.6.01(1)(e)–(ea). This involves:
- informing the client that the AFS licensee or representative can provide the required financial services;
- providing the client with the contact details of the AFS licensee or representative; and
- giving full disclosure of any associated benefits or commissions.
Sometimes, the client may also want the referrer or finfluencer to engage with the AFS licensee or representative to whom they are referred. This is permitted, provided no explicit or implicit financial product advice is given when doing so. For example, the referrer or finfluencer must not endorse or make any recommendations regarding the financial products provided by the AFS licensee or representative.
Dealing by Arranging in Financial Products
Referrers must also assess whether their activities amount to dealing by arranging in financial products. Arranging refers to the facilitation of a financial product transaction, and courts have interpreted it broadly.
ASIC’s Info Sheet 269 provides an illustrative example where a finfluencer or referrer may be considered to be arranging where:
- they promote a unique link to an AFS licensee’s trading platform;
- it is a unique link that cannot be accessed anywhere else;
- they receive a payment from the AFS licensee for each click-through; and
- people who access the link also receive a benefit when buying the products because of the unique link.
However, suppose you merely provide the names and details of AFS licensees that have a platform to trade financial products and have no further involvement in any subsequent transaction. In this case, this is unlikely to constitute dealing by arranging.
Moving Forward
AFS licensees engaging with referrers and finfluencers must implement robust monitoring and supervision policies. This includes:
- due diligence on the credibility and authorisation of referrers;
- ensuring their alignment with your values; and
- tracking their activities and communications with consumers.
For start-ups acting as AFS licensees and product issuers, a careful examination of existing arrangements with referrers is essential. Understanding how your model operates, its alignment with business goals, and the associated risks is crucial.
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Key Takeaways
As the financial services landscape continues to evolve, staying abreast of regulatory requirements is not just a compliance necessity but a strategic imperative for start-ups engaged in referral partnerships or finfluencer activities.
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