GEN 3.4.2 Guidance
1. 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
Person who makes the Financial Promotion.
2. In Rule GEN 3.4.2(b) the
DFSA considers that the following non-exhaustive list of factors may each be indicative of whether or not a Financial Promotion is "intended to be acted upon by, or targeted at, Persons in the DIFC":
i. whether it is expressed to be for a
Person or type of Person in the DIFC;
ii. whether it is sent to an address (including a P.O. Box) in the
iii. whether it is physically distributed to
Persons in the DIFC;
iv. whether it takes place in the
v. whether it makes reference to the
vi. whether it appears in a
vii. whether it appears on a DIFC-based or related website or other media;
viii. whether it is sent to the email of a
Person in the DIFC; or
ix. whether it contains a prominent and clear disclaimer on its face that it is not intended to be acted upon by
Persons in the DIFC.
DFSA in 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 Promotion actually leads to the provision of any financial service. However, the DFSA considers 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.
DFSA considers that a Person located outside the DIFC who makes a Financial Promotion into the DIFC, makes that communication in the DIFC. The DFSA considers that the prohibition in Article 41A(1) applies irrespective of where the communicator of the Financial Promotion is located.