Cryptocurrency Marketing – The BVI, Spain, Singapore, the UK
Pupil Barrister (England and Wales)
Barrister (BVI, Nevis, St. Vincent)
The year 2022 is already off to an impressive legislative start.
In the British Virgin Islands (“BVI”) The Virtual Assets Service Providers Act, 2022 will introduce new legislation to provide a regime for the registration of providers of virtual assets services and better enhance the Virgin Islands' international obligations to prevent the misuse of virtual assets for money laundering, terrorist financing or proliferation financing purposes. 9https://bvi.gov.vg/media-centre/speech-throne-2022 Accessed 22 January 2022
In Spain there are new rules passed, which will allow the National Securities Market Commission (CNMV) to monitor all types of cryptoasset advertising. The rules also tighten requirements around risk disclosure.
Under the rules, influencers and their sponsors will be required to notify the authorities in the event of mass advertising campaigns before posting cryptoasset promotions and further warn of the risks associated with investing in cryptoassets.
The CNMV has the power to require the suspension or correction of advertising campaigns that do not comply with the rules, notwithstanding the CNMV's authority to apply penalties where appropriate, according to the applicable laws. According to a report by Reuters, advertisers and companies promoting cryptoassets will have to notify the CNMV at least 10 days in advance about campaigns targeting over 100,000 people. The rules apply to direct promotions by cryptoasset service providers as well as those carried out on their behalf by third parties. The new rules are due to come into effect in mid-February. 10https://www.cnmv.es/portal/verDoc.axd?t=%7B52286f9f-c592-4418-9559-b75bf97115d2%7D Accessed 22 January 2022
In Singapore, change is also afoot. The tightening of restrictions was made in the form of new guidelines issued by the Monetary Authority of Singapore (MAS).
The MAS guidelines 11https://www.mas.gov.sg/-/media/MAS-Media-Library/regulation/guidelines/PSO/ps-g02-guidelines-on-provision-of-digital-payment-token-services-to-the-public/Guidelines-on-Provision-of-Digital-Payment-Token-Services-to-the-Public-PS-G02.pdf Accessed 22 January 2022 clarify that payment token service providers are indeed subject to the new restrictions these include payment institutions, banks and other financial institutions and applicants under the Singapore Payment Services Act.
The Singaporean regulator also plans to apply the restrictions to services which transfer payment tokens, provision of custodian wallet services, and facilitate the exchange of crypto assets without possession of moneys or digital payment tokens when amendments to the Payment Services Act take effect. 12https://www.mas.gov.sg/news/media-releases/2022/mas-issues-guidelines-to-discourage-cryptocurrency-trading-by-general-public Accessed 22 January 2022
The guidelines further state that the ban on crypto services advertising in Singapore applies to advertisements on public transport, public transport venues, public websites, social media platforms, and broadcast and print media.
Digital payment token service providers are also prohibited from hiring third parties such as social media influencers to promote their services and from providing public ATMs that sell tokens. They can only market or advertise on their own company websites, mobile applications or official social media accounts.
Following on from the furore in respect of the mid – 2021 restrictions placed on popular crypto exchanges such as Binance by the Financial Conduct Authority of the United Kingdom (“FCA”) and the exchanges subsequent end of 2021 commitment to seek licensing in the United Kingdom 13https://www.coindesk.com/business/2021/12/06/binance-hires-in-uk-plans-to-seek-fca-approval-for-launch-report/ Accessed 22 January 2022 - it appears that the FCA is moving to refine its regulatory approach to all things crypto.
The main proposals appear to be the targeting of advertisements promoting crypto investments, the FCA is proposing to bring ads for cryptoassets become subject to rules governed by the FCA to bring them “in line with the same high standard that other financial promotions such as stocks, shares and insurance products are held to”.
It is claimed that this move seeks to strike a balance between allowing the booming cryptoasset market to flourish while protecting consumers by making sure ads encouraging investment were “fair, clear and not misleading”.
“Cryptopoassets can provide exciting new opportunities, offering people new ways to transact and invest,” said Rishi Sunak, the UK chancellor. “But it’s important that consumers are not being sold products with misleading claims. We are ensuring consumers are protected, while also supporting innovation of the cryptoasset market.”
There has been a boom in cryptocurrency advertising encouraging consumers not to miss out on the craze, with about 2.3 million people in the UK now thought to own a cryptoasset.14 https://www.theguardian.com/technology/2022/jan/18/treasury-plans-crackdown-on-misleading-cryptocurrency-ads Accessed 22 January 2022
In 2020, the government and the FCA implemented the Fifth Anti-Money Laundering Directive for cryptoassets, which brought custodian wallet providers and cryptoasset exchange providers into anti-money laundering and counter-terrorist financing regulation.
For now, and in line with the FCA’s behavioural research, we expect that adverts (at least within the UK) will change their format such that more warnings will appear, and more hoops will be introduced to slow down a potential customer’s decision making process to ensure more decision points.15 https://www.fca.org.uk/publications/research/improving-outcomes-consumers-high-risk-investments Accessed 22 January 2022
Digging a little deeper, it is interesting to note how the FCA and by extension Her Majesty’s Treasury (“HM Treasury”) is approaching this exercise.16https://www.fca.org.uk/news/press-releases/strengthen-financial-promotions-rules-protect-consumers Accessed 22 January 2022 The following definition of cryptoasset is now proposed (subject to further consideration when the legislation is drafted): 'any cryptographically secured digital representation of value or contractual rights which is fungible and transferable'.
The UK Government no longer believes that it is appropriate for the definition to specify the underlying technology: the reference to distributed ledger technology, included in the previous definition, has therefore been removed. The UK Government has retained the requirement for fungibility, recognising explicitly that non-fungible tokens will in consequence be excluded from its proposals.
The approach seeks to expand the scope of the Financial Promotion Order to capture certain cryptoassets, and complements broader proposals on cryptoassets and stablecoins set out via the government’s consultation on a regulatory framework for stablecoins earlier this year. It also aligns with separate government proposals to strengthen the authorisation process for financial promotions.
The Financial Promotion Order sets out a list of controlled investments that are captured by the legislation, and controlled activities that apply to these investments. The promotion of engaging in investment activity is restricted under the Financial Promotion Order, which relates to agreements constituting a controlled activity, or exercising any rights conferred by a controlled investment.
Controlled investments under the Financial Promotion Order currently include, for example, government and public securities, options and futures. The list of controlled activities includes, for example, dealing in securities and contractually based investments, arranging deals in investments, and managing investments.
The Financial Promotion Order contains a series of controlled activities that capture the main business activities conducted by firms who deal in the controlled investments in the Financial Promotions Order. Not all of the controlled activities contained within the legislation are relevant to cryptoassets.
The consultation proposed to amend several Financial Promotion Order controlled activities to apply to qualifying cryptoassets. These activities 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
We suspect that more is at play here given the relatively tight timeline proposed for the implementation of changes (roughly 6 months) and moves to tighten the tax noose will (in our estimation) be revealed in the near future, watch this space!
Now more than ever UK crypto enthusiasts, investors, promoters and others in the space need proportionate and protective tax and legal advice to ensure that they remain compliant and abreast of the frequent changes in the regulatory space.