ASIC struggles with blogs, bulletin boards

Under current law, any publication that offers financial advice - offline or online - requires an Australian Financial Services license.

But ASIC acknowledges that the blogosphere and other social media have created a very muddy picture as to what constitutes a web site offering financial advice. 

A great many informative web sites exist which provide some level of financial analysis, recommendation or opinion, without its author's possessing a license.

These sites - such as bulletin boards, blogs or chat rooms - also tend to feature far less strict editorial control than traditional web sites.

Technically, the matter comes under interpretation under the Financial Services Reform Act of 2001, which stipulates that a license is required to run a business that "provides financial product advice."

"Informal commentary about financial products posted to an Internet Discussion Site may amount to financial product advice," the ASIC consultation paper says.

"Authors of postings on IDSs may need to be licensed themselves if their conduct amounts to carrying on a business of providing a financial service."

ASIC also considers that owners and moderators of these sites should require a financial services license. 

"Operators who authorise or arrange for others to post such comments may also require a licence.

"This is because authorising or arranging for a thing to be done is generally treated in the same way as actually doing the thing under the Corporations Act."

Those exempt to the legislation include journalists writing for newspapers or periodicals; news and information broadcasts.

Blogs and bulletin boards differ from this media, ASIC says, because they tend to "involve some interaction among participants, rather than the one-way transmission that generally characterises news services; and often contain a higher degree of opinion and recommendation than purely factual analysis." 

"We propose not to grant IDS operators relief from the financial services licensing and disclosure regimes," the paper says.

"Therefore, they must hold an AFS licence and provide the necessary disclosure documents if they are carrying on a business of providing financial services." 

"If a person is providing financial product advice through an IDS (whether as the IDS operator or otherwise); and the advice forms part of a financial services business, that person should, like any other provider of financial product advice, hold an AFS licence and comply with the relevant disclosure and conduct requirements of the Corporations Act."

ASIC proposes new guidelines for operators of these sites as part of the discussion paper. 
Blog and bulletin board operators "must be aware of and control what is occurring on the IDS, including through having systems and processes in place to review and keep records of postings and be aware and keep records of the identity of authors of postings," the report says.

"They must also give appropriate warnings and disclosures to users."

Submissions on the paper are welcome at policy.submissions@asic.gov.au