GEN 3.4 GEN 3.4 Scope of the Financial Promotions Prohibition
GEN 3.4.1 GEN 3.4.1(1) A
Personshall not, subject to (2) and (3), make a Financial Promotionin or from the DIFCunless that Personis an Authorised Person.(2) A Representative Officemay make a Financial Promotionin or from the DIFConly in relation to a financial service or financial product offered:(a) in a jurisdiction other than the DIFC; and(b) by a related party (as defined in GEN Rule 2.26.1(3)) of the Representative Office.(3) A Personother than an Authorised Personmay make a Financial Promotionin or from the DIFCif, and only to the extent that, the Person:(a) is licensed and supervised by a Financial Services Regulatorin the UAE;(b) is a Recognised Bodyor External Fund Manager;(c) is a Reporting Entityand makes a Financial Promotionin or from the DIFCexclusively for the purpose of discharging its mandatory disclosure requirements; or(d) makes an exempt Financial Promotionas specified in (4).(4) For the purposes of (3)(d), a communication is an "exempt Financial Promotion" if it is:(a) approved by an Authorised Firmother than a Representative Office;(b) approved by a Representative Officeand it is a communication relating to a financial service or financial product offered by a related party (as defined in GEN Rule 2.26.1(3)) of the Representative Office;(c) directed at and capable of acceptance exclusively by a Personwho appears on reasonable grounds to be a Professional Clientof the type specified in COB Rule 2.3.4;(d) made to a Personin the DIFC(the "recipient") as a result of an unsolicited request by the recipient to receive the Financial Promotion;(e) made or issued by or on behalf of a government or noncommercial government entity; or(f) made in the DIFCby a Personin the course of providing legal or accountancy services and may reasonably be regarded as incidental to and a necessary part of the provision of such services.
GEN 3.4.1 Guidance
Personproposes to conduct Financial Promotionsin or from the DIFCother than as permitted under (3) and (4), that Personshould consider obtaining an appropriate Licence.Derived from DFSA RM184/2016 (Made 7th December 2016). [VER38/02-17]
GEN 3.4.2 GEN 3.4.2
Persondoes not breach the Financial Promotions Prohibitionif:(a) the Personcauses a Financial Promotionto be made in the course of providing a facility which is a mere conduit for the making of the Financial Promotion;(b) the Personis located outside the DIFCand makes a Financial Promotionwhich appears, on reasonable grounds, to be a communication which is not directed at or intended to be acted upon by a Personin the DIFC;(c) the Person makes a Financial Promotion relating to an Employee Share Scheme and that Person or another entity in its Group is the employer to whom the scheme relates; or(d) the Financial Promotionis not made for a commercial or business purpose.
GEN 3.4.2 Guidance1. Examples of a mere conduit would include a newspaper or magazine, a website carrying third-party banner ads, a postman or courier, a person paid to hand out promotional material to the public and an event venue - unless in each case they were the originator i.e the
Personwho makes the Financial Promotion.2. In Rule GEN 3.4.2(b) the DFSAconsiders that the following non-exhaustive list of factors may each be indicative of whether or not a Financial Promotionis "intended to be acted upon by, or targeted at, Personsin the DIFC":i. whether it is expressed to be for a Personor type of Personin the DIFC;ii. whether it is sent to an address (including a P.O. Box) in the DIFC;iii. whether it is physically distributed to Personsin the DIFC;iv. whether it takes place in the DIFC;v. whether it makes reference to the DIFC;vi. whether it appears in a DIFCpublication;vii. whether it appears on a DIFC-based or related website or other media;viii. whether it is sent to the email of a Personin the DIFC; orix. whether it contains a prominent and clear disclaimer on its face that it is not intended to be acted upon by Personsin the DIFC.3. The DFSAin applying GEN Rule 3.4.2(d) will generally consider that for a communication to be made "for a commercial or business purpose" there must be a commercial element to the Financial Promotion, whether or not the Financial Promotionactually leads to the provision of any financial service. However, the DFSAconsiders that "for a commercial or business purpose" requires a commercial or business interest on the part of the communicator and the nature of the communicator's business need not be related to any specific financial service.4. The DFSAconsiders that a Personlocated outside the DIFCwho makes a Financial Promotioninto the DIFC, makes that communication in the DIFC. The DFSAconsiders that the prohibition in Article 41A(1) applies irrespective of where the communicator of the Financial Promotionis located.