AUTH 7
Periodical publications, news services and broadcasts: applications
for certification
AUTH 7.1
Application and purpose
- 01/12/2004
Application
AUTH 7.1.1
See Notes
This
chapter applies to anyone involved in publishing periodicals, or in providing
news services or broadcasts, who gives (or proposes to give) advice about securities, relevant investments or regulated mortgage contracts and
who wishes to determine whether he will be carrying on the regulated activities of advising on investments or advising on regulated mortgage contracts.
- 15/11/2001
Purpose
AUTH 7.1.2
See Notes
The purpose of this chapter is to provide guidance on:
(1) when a person involved in publishing periodicals,
or in providing news services or broadcasts, requires authorisation to carry on the regulated activities of advising on investments or advising on regulated mortgage contracts (see
AUTH 7.3 (Does the activity require
authorisation)); and
(2) if he does, whether he qualifies for
the exclusion from those activities that applies to a periodical publication,
a regularly updated news or information service or a television or radio service
(see AUTH 7.4 (Does the article 54 exclusion
apply));
- 15/11/2001
AUTH 7.1.3
See Notes
This guidance is issued under section 157 of the Act. The guidance represents the FSA's views and does not bind the courts,
for example in relation to an action for damages brought by a private person for breach
of a rule (see
section 150 of the Act (Actions
for damages)), or in relation to the enforceability of a contract where there
has been a breach of section 19 (The general prohibition) of the Act (see section 26 of
the Act (Enforceability
of agreements)). Although the guidance does
not bind the courts, it may be of persuasive effect for a court considering
whether it would be just and equitable to allow a contract to be enforced
(see section 28(3) of the Act).
Anyone reading this guidance should
refer to the Act and
to the Financial Services and Markets Act 2000 (Regulated Activities) Order
2001 (SI 2001/544) (the Regulated
Activities Order) to find out the precise scope and effect of
any particular provision referred to in the guidance and should consider seeking legal
advice if doubt remains. If a person acts
in accordance with the guidance in
the circumstances contemplated by it, then the FSA will proceed on the footing that the person has complied with
the aspects of the requirement to which the guidance relates.
- 15/11/2001
AUTH 7.2
Introduction
- 01/12/2004
Exclusion for advice given in certain publications and services
AUTH 7.2.1
See Notes
Advice is excluded by article 54 of the Regulated Activities Order from
the regulated activities of advising on investments and advising on regulated mortgage contracts if:
(1) the advice is given in a publication
or service that is in one of three formats (see AUTH
7.4.3 G and AUTH
7.4.4 G);
and
(2) the principal purpose of the particular
format is neither to give certain advice nor to lead to (or enable) certain
transactions to be carried out (see AUTH
7.4.5 G and AUTH
7.4.10 G).
- 15/11/2001
Certificate that the exclusion applies
AUTH 7.2.2
See Notes
If a person would, but for the exclusion, be carrying
on the regulated activities of advising on investments or advising on regulated mortgage contracts,
or both, and will be doing so as a business in the United Kingdom (see AUTH 7.3), he may wish to apply to the FSA for a certificate that the exclusion
applies (see AUTH 7.6).
However, a person does
not need a certificate to get the benefit of the exclusion. In many cases
it will be clear that the exclusion in article 54 applies and a certificate
is not called for. A certificate may be appropriate, however, where the exclusion
appears to apply but there may be an element of doubt. The granting of a certificate
would remove any such doubt.
- 15/11/2001
Certificates under the Financial Services Act 1986
AUTH 7.2.3
See Notes
Certificates given under paragraph 25
of Schedule 1 to the Financial Services Act 1986 (Exclusion for periodical
publications giving investment advice) do not have effect after 1 December
2001. Holders of such certificates must consider their position under the
terms of the new exclusion. If a person considers
that a certificate might be appropriate, a new application must be made.
- 15/11/2001
AUTH 7.3
Does the activity require authorisation?
- 01/12/2004
Advising on investments and advising on regulated mortgage contracts
AUTH 7.3.1
See Notes
Under article 53 of the Regulated Activities Order (Advising
on investments), advising a person is
a specified kind of activity if :
(1) the advice is given to the person in his capacity
as an investor or potential investor, or in his capacity as agent for an investor
or a potential investor; and
(2) it is advice on the merits of his doing
any of the following (whether as principal or
agent) :
(a)
buying, selling, subscribing
for or underwriting a particular investment which
is a security or
a relevant investment;
or
(b) exercising any right conferred by such
an investment to buy, sell, subscribe for or underwrite such an investment.
- 15/11/2001
AUTH 7.3.1A
See Notes
Under
Article 53A of the Regulated
Activities Order (Advising on regulated mortgage contracts),
advising a person is
a specified kind of activity if:
(1) the advice is given to the person in
his capacity as a borrower or potential borrower; and
(2) it is advice on the merits of his doing any of the following:
(a) entering into a particular regulated
mortgage contract; or
(b) varying the terms of a regulated
mortgage contract entered into by him after mortgage
day in such a way as to vary his obligations under that contract.
- 14/01/2001
AUTH 7.3.2
See Notes
Articles 53 and 53A of the Regulated Activities Order contain
a number of elements, all of which must be present before a person will require authorisation. For guidance on whether a person is carrying on these regulated activities,
see AUTH App 1 (Financial promotion and related activities)
and AUTH App 4 (Guidance on regulated activities connected with
mortgages).
- 15/11/2001
Carrying on the regulated activity by way of business
AUTH 7.3.3
See Notes
Under section 22 of the Act (Regulated activities),
for an activity to be a regulated
activity it must be carried on 'by way of business'. There is
power in the Act for
the Treasury to change the meaning of the business test by including or excluding
certain things. It has exercised this power (see the Financial Services and
Markets Act 2000 (Carrying on Regulated Activities by Way of Business) Order
2001 (SI No 2001/1177) (the Business
Order). This has been amended by Article 18 of the Financial
Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order
2003 (SI No 2003/1476) as explained in AUTH
7.3.3A G.
- 15/11/2001
AUTH 7.3.3A
See Notes
The result of the amendments made to
the meaning of the business test in section 22 of the Act is that the test differs depending on
the activity in question. Where the regulated
activities of advising
on investments and advising
on regulated mortgage contracts are concerned, the business
test is not to be regarded as satisfied unless a person carries on the business of engaging
in those activities. This is a narrower test than that of carrying on regulated activities by
way of business (as required by section 22 of the Act), as it requires the regulated activities to represent the carrying
on of a business in their own right. Where the advice relates to a contract of insurance,
the business test is not be regarded as satisfied unless the person carrying on the
activity of giving the advice is taking up or pursuing the activity for remuneration. AUTH
2.3 (The Business element) and AUTH
2.4 (Link between activities and the United Kingdom) together with AUTH
App 5.4 (The business test) provide further detail
on this.
- 14/01/2001
AUTH 7.3.4
See Notes
In the FSA's view, for a person to be carrying on the business of advising on investments or advising on regulated mortgage contracts he
will usually need to be doing so with a degree of regularity and for commercial
purposes - that is to say, he will normally be expecting to gain some kind
of a direct or indirect financial benefit. But, in the FSA's view it is not necessarily the case
that advice provided free of charge will not amount to a business. Advice
is often given 'free' by a journalist or presenter, or in a publication or
website, in the sense that no charge is made or commission received. For example,
a newspaper may reply to readers' letters to generate goodwill or to generate
a supply of further material that it can publish or a website that is 'free'
to the user will be sponsored or paid for by advertising. In such cases, if
advice on securities, relevant investments or regulated mortgage contracts is
given, then in the FSA's view
the business of advising
on investments or advising
on regulated mortgage contracts is being carried on. In addition,
non-commercial motives may be relevant in determining whether a person can be said to
be carrying on the business of giving advice. For example, an investigative
journal or journalist may occasionally feel that it is necessary to warn investors
against the purchase of a particular investment because there are suspicions
of fraud in connection with that investment. The FSA takes the view that, in such circumstances,
the journal or journalist would not be regarded as carrying on the business
of advising on investments or advising on regulated mortgage contracts as
he would be acting to prevent crime rather than in the carrying on of a business.
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Carrying on the regulated activity in the United Kingdom
AUTH 7.3.5
See Notes
Advice given in periodicals published
from an establishment in the United
Kingdom is regarded by the FSA as
given in the United Kingdom.
A similar approach is taken to advice given in, or by way of, a service provided
from such an establishment.
- 15/11/2001
AUTH 7.3.6
See Notes
In other circumstances, advice issued
remotely may still be given in the United
Kingdom. For example, the FSA considers
that advice is given in the United
Kingdom if :
(1) it is contained in a non-UK periodical that is
posted in hard copy to persons in
the United Kingdom;
- 15/11/2001
AUTH 7.3.7
See Notes
But even if advice is given in the United
Kingdom, the general prohibition will
not be contravened if the giving of advice does not amount to the carrying
on, in the United Kingdom,
of the business of advising
on investments or advising
on regulated mortgage contracts. Also, the general prohibition will not be contravened
if the exclusion for overseas
persons in article 72 of the Regulated Activities Order (Overseas persons)
applies. That exclusion applies in relation to the giving of advice on securities or relevant investments by
an overseas person as
a result of a 'legitimate approach' (defined in article 72(7)). In many cases
where publications or services are provided from outside the United Kingdom it is
likely that they will fall within the terms of this exclusion. For example,
this will exclude any advice in a publication or service from being a regulated activity if
it is given in response to an approach that has not been solicited in any
way. It should be noted, however, that the exclusions in Article 72 only apply
to the regulated activity of advising on regulated mortgage contracts where
both the lender and the borrower are outside the United Kingdom. The effect of this is that,
where the principal purpose of an overseas periodical publication is to offer
advice on securities or relevant investments and regulated mortgage contracts,
the exclusion for an overseas
person who provides advice to persons in the United Kingdom as a result of a legitimate
approach will not apply to the advice concerning regulated mortgage contracts.
- 15/11/2001
Exclusions and exempt persons
AUTH 7.3.8
See Notes
If a person is carrying on the business of advising on investments in
the United Kingdom,
he will not require authorisation if:
(1) he is able to rely on an exclusion; in
addition to the exclusions already mentioned (in articles 54 and 72 of the Regulated Activities Order),
other exclusions that may be relevant are in Chapter XVII of Part II of the Regulated Activities Order;
or
(2) he is an exempt person (see AUTH
2.11 (What to do Now?)); since persons are
exempt only in relation to specified regulated
activities, his exemption must apply to the regulated activity of advising on investments.
- 15/11/2001
Which person is required to be authorised?
AUTH 7.3.9
See Notes
Many people may be involved in the production
of a periodical publication, news service or broadcast. But if the regulated activity of advising on investments is
being carried on so that authorisation is
required, the FSA's view
is that the person carrying
on the activity (and who will require authorisation)
is the person whose
business it is to have the editorial control over the content. In the case
of a periodical publication, this will often be the proprietor. But particular
circumstances may vary so that the responsibility for content and editorial
control rests with a freelance journalist rather than with the proprietor.
In such cases it may well be that the journalist may properly be viewed as
carrying on his own business, using the periodical publication as the vehicle
for doing so - in which case it is likely to be the journalist alone who needs
the authorisation.
- 15/11/2001
AUTH 7.3.10
See Notes
Similar principles apply to news services
and broadcasts.
- 15/11/2001
AUTH 7.4
Does the article 54 exclusion apply?
- 01/12/2004
The formats
AUTH 7.4.1
See Notes
The exclusion applies to advice given
in one of the following formats:
(1) advice in writing or other legible form
which is contained in a newspaper, journal, magazine, or other periodical
publication;
(2) advice in writing or other legible form
which is given by way of a service comprising regularly updated news or information;
(3) advice given in any service consisting
of the broadcast or transmission of a television or radio programme.
- 15/11/2001
AUTH 7.4.2
See Notes
But the exclusion applies only if the
principal purpose of the publication or service is not:
(2) to lead or enable persons to:
(a)
buy, sell, subscribe for or
underwrite securities or relevant investments;
or (as the case may be)
(b) to enter as borrower into regulated
mortgage contracts, or vary the terms of regulated mortgage contracts entered into
by the persons to
whom the advice is given as borrower.
- 15/11/2001
Formats in writing or other legible form
AUTH 7.4.3
See Notes
(1) There are two specified formats for advice
appearing in writing or other legible form.
(2) The first is that of a newspaper, journal,
magazine or other periodical publication. For these purposes it does not matter
what form the periodical publication takes as long as it can be read. This
will include, for example, a newspaper appearing as a hard copy or electronically
on a website. It will also include any periodical published on an intranet
site.
(3) The second is that of a regularly updated
news or information service. As with periodical publications, it does not
matter how the service is accessed by, or delivered to, the user as long as
it can be read. This will include, for example, a service provided through
teletext, a fax retrieval system or a website (including websites that are
used through handheld devices). The fact that it must be a 'regularly updated'
service means that the provision of up-to-date news or information must be
a primary feature of the service (for example, where it is likely to be of
commercial value to the recipient). But, in the FSA's view, a news or information 'service'
is not restricted to the giving of only news or information since this would
not generally constitute the regulated
activity of advising
on investments (see AUTH App 1 (Advice or information))
or advising on regulated
mortgage contracts (see AUTH App 4.6.10 G (Advice or information)). So the exclusion applies to services
providing material in addition to news or information, such as comment or
advice.
- 15/11/2001
Television and Radio
AUTH 7.4.4
See Notes
The third specified format is for advice
in any service consisting of the broadcast or transmission of television or
radio programmes. This will encompass the transmission through cable of interactive
television programmes. In the FSA's view,
'service' in this context goes beyond any particular series of programmes
broadcast or transmitted through a given medium. It refers instead to the
administrative system (usually aimed at a particular audience) through which
a range of different programmes is provided, for example any particular TV
or radio channel. In the FSA's view,
it is unlikely that a TV or radio service will have one of the principal purposes
that would prevent its being able to rely on the exclusion unless the complete
service is designed to focus on financial or investment matters.
- 15/11/2001
The principal purpose test
AUTH 7.4.5
See Notes
The exclusion applies only if the principal
purpose of the publication or service is not:
(1) to give advice on securities, relevant investments or regulated mortgage contracts (see AUTH
7.3.1 G) or;
(2) to lead or enable persons to:
References to
leading or enabling persons to
do the things mentioned in (a) or (b) are abbreviated in AUTH
7.4.9 G and AUTH
7.4.11 G as leading or enabling persons 'to engage in a relevant
transaction'.(b) to enter as borrower into regulated
mortgage contracts, or vary the terms of regulated mortgage contracts entered into
by persons to
whom the advice is given as borrower.
- 15/11/2001
AUTH 7.4.6
See Notes
Any assessment of the principal purpose
of a periodical publication, news service or broadcast needs to be carried
out against the background that:
(1) they all share the characteristic of
being available over a sustained period and, within that period, appearing
from time to time with a different content;
(2) the same periodical publication will
have many different editions;
(3) the regular updating of the news or information
service will produce differences in the material provided, comparing the content
of the service as it appears at any one time with its content as it appears
at any other; and
(4) the programmes in a TV or radio service
are bound to have a different content from each other.
- 15/11/2001
AUTH 7.4.7
See Notes
To address this feature of variation
in content, article 54 requires that the principal purpose of a publication
or service is to be assessed by looking at the publication or service taken
as a whole and including any advertisements or other promotional material
contained in it. This requirement of an overall assessment of purpose or purposes
goes beyond the content of any particular example of the publication or service
(such as a particular edition or programme). It fixes instead on the characteristic
content of the publication or service looked at over time. This judgment depends
on the overall impression of content. One way of approaching this is to consider
what an average consumer of a publication or service might expect to find
when making a decision whether to buy a particular edition or to use the
service.
- 15/11/2001
AUTH 7.4.8
See Notes
Looking at the first disqualifying purpose
set out in the exclusion, all the matters relevant to whether the regulated activities of advising on investments or advising on regulated mortgage contracts are
being carried on must be taken into account (see AUTH App 1 Advising on investments). If the principal purpose of a publication
or service is to give to persons,
in their capacity as investors (or potential investors) or as borrowers (as
the case may be), advice as referred to in AUTH
7.4.5 G (1),
then the publication or service will not be able to benefit from this exclusion.
- 15/11/2001
AUTH 7.4.9
See Notes
For the second disqualifying purpose,
the focus switches to assessing whether the principal purpose of a publication
or service is to lead a person to engage in a relevant transaction or enable
him to do so. This disqualifying purpose is an alternative to the first. So
it extends to material not covered by the first. In this respect :
In the FSA's view, material will not lead or enable a person to engage in a relevant transaction where the material is intended merely to raise people's awareness of matters relating to securities, relevant investments or regulated mortgage contracts.
(1) material in a publication or service
that invites or seeks to procure persons to
engage in a relevant transaction can be said to "lead" to those transactions
even if it would not constitute the regulated
activity of advising
on investments or advising
on regulated mortgage contracts; this includes, for example,
material that consists of generic buy or sell recommendations, corporate brochures
or invitations to invest in particular products or with a particular broker
or fund manager; and
(2) material enables persons to engage in a relevant transaction
if it facilitates the transactions, for example by giving a user the forms
that enable him to carry out relevant transactions; so this limb of the second
disqualifying purpose would apply to the material providing an online dealing
facility on an interactive website or to facilities for on-screen dealing
through digital television.
In the FSA's view, material will not lead or enable a person to engage in a relevant transaction where the material is intended merely to raise people's awareness of matters relating to securities, relevant investments or regulated mortgage contracts.
- 15/11/2001
AUTH 7.4.10
See Notes
The test for determining the principal
purpose of any publication that appears on a website, or of any news or information
service on a website, is no different from any other medium. An overall view
will need to be taken of all the contents of the publication or service, including
any features such as chatrooms, advertisements or other promotional material.
- 15/11/2001
AUTH 7.4.11
See Notes
In the context of the second disqualifying
purpose, whether or not the presence of a hypertext link to another website
indicates that the purposes of a publication or service include leading to
relevant transactions (or enabling them to be entered into) will depend on
all the circumstances. It will, in particular, be necessary to consider the
form of the link and the content of the destination website. In the FSA's view, the presence
on a host publication or service of a hypertext link which is only the name
or logo of another website is unlikely itself to indicate that a purpose of
the host website is to lead to relevant transactions (or enable them to be
entered into). But if more sophisticated links, such as banners or changeable
text, contain promotional material inviting or seeking to procure persons
to enter into relevant transactions, those links will have to be weighed in
the balance in determining the principal purpose of the publication or service
hosting the link. The same applies if the host publication or service hosting
the link itself contains material inviting persons to activate the link with
a view to entering into relevant transactions.
- 15/11/2001
AUTH 7.4.12
See Notes
In reaching a view of the principal purpose
of the publication or service as a whole, all the material that falls within
either the first or second disqualifying purpose must be considered together.
- 15/11/2001
Who can benefit from the exclusion?
AUTH 7.4.13
See Notes
The persons who
directly benefit from the exclusion will be the persons who would otherwise require authorisation (see AUTH
7.3.9 G), that is, the person whose business
it is to have editorial control over the content of the publication or service.
The exclusion will apply regardless of the legal form of the person giving the advice
so, for example, it will extend to advice given by a company through its employees.
- 15/11/2001
AUTH 7.5
When is it appropriate to apply for a certificate?
- 01/12/2004
AUTH 7.5.1
See Notes
To decide whether the exclusion in article
54 applies, three assessments need to be made :
(1) first, an assessment whether the vehicle
for giving the advice is a newspaper, journal, magazine or other periodical
publication, a service comprising regularly updated news or information or
a service consisting of the broadcast or transmission of television or radio
programmes;
(2) second, an assessment of the purpose
or purposes of any particular publication or service; and
(3) third, an assessment of the relative
significance of each purpose compared with any others.
- 15/11/2001
AUTH 7.5.2
See Notes
Because opinions may differ in circumstances
close to the borderline, giving rise to doubt as to whether or not the exclusion
applies, the Regulated
Activities Order makes provision for a certification process.
The purpose of this process is not to provide certification for every publication
or service to which the exclusion in article 54 applies.
- 15/11/2001
AUTH 7.5.3
See Notes
In many cases it will be clear whether
or not a publication or service benefits from the exclusion. A publication
or service may provide reports on such a wide range of matters that it is
not possible to say that it has any purpose other than to provide coverage
of a wide range of matters. Alternatively, it may be clear that the principal
purpose of a publication or service is something other than those specified
in the article 54 exclusion. Examples of cases where, in the FSA's view, the exclusion
is capable of applying include :
(1) national or local newspapers providing
the normal range of non-financial news and coverage of other matters (such
as sports, arts and leisure) and which simply contain financial journalism
(such as reports on particular investments or markets) as one element of their
all-round coverage;
(2) weekly or monthly journals aimed at a
particular subject (such as computing or sport) but which have some coverage
of, or promotional material relating to, investments and financial matters;
(3) websites which provide financial news
or information;
(4) closed user group communication systems
specialising in financial or investment matters; and
(5) television or radio channels dedicated
to consumer affairs which devote a small number of programmes to financial
planning.
- 15/11/2001
AUTH 7.5.4
See Notes
It is only where there are grounds to
think that there is a significant doubt as to the principal purpose of a publication
or service that the question of whether or not to apply to the FSA for a certificate
under article 54 of the Regulated
Activities Order is expected to arise. For example, this may
happen where a publication or service has several significant purposes and
one of them is a disqualifying purpose referred to in the exclusion in article
54. It may on occasion be difficult to assess the relative importance of the
purposes compared with each other, particularly given that over time there
will be a variation in the content of the publication or service. In such
cases, an application for a certificate would be appropriate.
- 15/11/2001
AUTH 7.6
Applications for a certificate
- 01/12/2004
Pre-application contact
AUTH 7.6.1
See Notes
- 01/07/2003
Form of application
AUTH 7.6.2
See Notes
(1) An application should be made by the
proprietor of the relevant publication or service using a form which can be
obtained from the Enquiries and Applications Department (Authorisation Enquiries
team) of the FSA.
The form asks for general information about the applicant and gives guidance
notes on completion and other details of how the FSA can help.
(2) An applicant will be asked to state his
own view of the principal purpose of the publication or service. This should
include an explanation why the applicant believes that he qualifies for the
exclusion and why he believes that a certificate may be called for.
(3) The applicant will be asked to define
the extent of the publication or service for which he is seeking a certificate.
(4) The applicant will be asked to supply
material to demonstrate the content of the publication or service or, in the
case of a new publication or service, its proposed content. For an existing
publication or service, past samples should be supplied in the form most appropriate
to the medium for which certification is sought. The samples should be chosen
on the basis that they are representative of the publication or service as
a whole and as it appears from time to time. The applicant will be asked to
justify the selection of the particular samples as being representative. For
a new publication or service, samples of proposed content should be supplied.
These should be as comprehensive as possible.
(5) The applicant will be asked to supply
material to demonstrate that the principal purpose is not liable to change
over the foreseeable future. This may, for example, include business plans,
a statement of editorial policy and marketing literature.
(6) The application must be accompanied by
the application fee (see AUTH
7.6.5 G).
- 01/07/2003
Requests for further information
AUTH 7.6.3
See Notes
After an application is sent in, the FSA may, on occasion,
need to obtain additional information from the applicant or elsewhere to enable
it to process the application.
- 15/11/2001
Time for processing applications
AUTH 7.6.4
See Notes
The Act does
not specify a time limit for processing the application but the FSA intends to deal with
an application as quickly as possible. The more complete and relevant the
information provided by an applicant, the more quickly a decision can be expected.
But on occasion it may be necessary to allow time in which the FSA can monitor the content
of the service. This might happen where, for example, a service is in a form
that makes record keeping difficult (such as a large website with a number
of hypertext links).
- 15/11/2001
Application Fee
AUTH 7.6.5
See Notes
The fee for an application for a certificate
under article 54 of the Regulated
Activities Order is ???2,000 (see AUTH 4 Annex 1).
- 15/11/2001
The FSA's approach to considering applications
AUTH 7.6.6
See Notes
The FSA will
consider any application for a certificate on its merits.
- 15/11/2001
AUTH 7.6.7
See Notes
Before it gives a certificate, the FSA must be satisfied
that the principal purpose of the publication or service is neither of the
purposes referred to in the exclusion (see AUTH
7.4.5 G).
If there is insufficient evidence, a certificate cannot be given.
- 15/11/2001
AUTH 7.6.8
See Notes
The FSA will
form an overall view as to the purpose (or purposes) underlying the publication
or service. It will then determine whether the principal purpose is neither
of those referred to in article 54 of the Regulated Activities Order. Because the possible
range of subject matter covered by different publications or services is very
wide it is not possible to apply standard tests. The FSA will form a judgment as to the overall
impression created by the publication or service. For example, the proportion
of advice, compared with other material in the publication or service, will
be relevant in determining the principal purpose of the publication or service.
But this will not necessarily be conclusive one way or the other. The purpose
of a publication or service may still be to give advice even if only a small
proportion of the space is devoted to advice as such. This might happen if,
for example, a publication were marketed primarily on the basis that it contains
advice on investments.
- 15/11/2001
AUTH 7.6.9
See Notes
In reaching a view, the FSA will take into account
both editorial and promotional material in the publication or service. It
will also have regard to the stated purpose of the publication or service
and to any other material relevant to its purpose.
- 15/11/2001
AUTH 7.6.10
See Notes
Other factors relevant to an assessment
of purpose or content of the publication or service may vary depending on
the nature of the publication or service. For example, if a service is provided
by a website, consideration of the content of the publication or service will
take account of hypertext links and other features such as e-mail addresses,
bulletin boards and chat rooms.
- 15/11/2001
Grant of application
AUTH 7.6.11
See Notes
If the FSA decides to grant the application it will
issue a certificate. The certificate will normally be granted for an indefinite
period. It will state what it is that the FSA considers constitutes the periodical
or service in relation to which the FSA is
satisfied that the exclusion in article 54 of the Regulated Activities Order applies. In many
cases this will be self-evident. But it may sometimes be necessary to include
further details in the certificate indicating what the certificate covers.
For example, in the case of a large website, a distinct publication or service
may form part of the website. In such a case a certificate may be given for
that part only.
- 15/11/2001
Refusal of application
AUTH 7.6.12
See Notes
An application may be refused on the
grounds that the FSA is
not satisfied that the principal purpose of the publication or service is
neither of those mentioned in article 54(1)(a) or (b) of the Regulated Activities Order (see AUTH
7.4.5 G). An application may
also be refused on the grounds that the FSA considers
that the vehicle through which advice is to be given is not a newspaper, journal,
magazine or other periodical publication, a regularly updated news or information
service or a service consisting of the broadcast or transmission of television
or radio programmes. Where an application is refused, the FSA will issue a notice which will give a
statement of the reasons for the refusal in that case. If the application
is refused, the applicant, if he is an unauthorised
person, will need to consider whether it is appropriate to continue
to publish the periodical or provide the service without authorisation or exemption.
- 15/11/2001
AUTH 7.7
Post certification issues
- 01/12/2004
Ongoing monitoring
AUTH 7.7.1
See Notes
If a certificate is granted then, until
it is revoked, it is conclusive evidence that the exclusion under article
54 of the Regulated Activities
Order applies. A person to
whom a certificate is given should notify the FSA of any significant changes to the purpose
or nature of the content of the relevant publication or service. The FSA will need to keep
the content of the publication or service in question under review.
- 15/11/2001
AUTH 7.7.2
See Notes
An annual fee of £1,000 will be
charged to meet the costs of ongoing monitoring (see SUP 20 Annex 3).
- 01/04/2004
Revocation of certificate
AUTH 7.7.3
See Notes
The FSA may
revoke a certificate at the request of its holder or on the FSA's own initiative if the FSA considers that it
is no longer justified. If the FSA revokes
a certificate on its own initiative, it would normally expect to give advance
notice to the holder of the certificate together with a statement of the reasons
for the proposed revocation, and give the holder of the certificate an opportunity
to make representations. Where a certificate is revoked, the holder of the
certificate, if he is an unauthorised
person, will need to consider whether it is appropriate to continue
to publish the periodical or provide the service without authorisation or exemption.
- 15/11/2001
Publication of details of certificate holders
AUTH 7.7.4
See Notes
The fact of a person holding a certificate granted under
article 54(3) is information which may be of relevance to other persons (including investors
or potential investors). For this reason, the FSA considers it appropriate that details
of certificates granted under article 54(3) should be included in a list on
the public record which the FSA is
required to maintain under section 347 of the Act (The record of authorised persons, etc).
- 15/11/2001
Further information
AUTH 7.7.5
See Notes
For further information contact the Enquiries
and Applications Department (Authorisation Enquiries team) at the FSA (see AUTH
1.9.2 G).
- 01/07/2003