Financial Services
(Advertising) (Jersey) Order 2008
1 Interpretation
(1) In this Order –
“broadcast” means published whether by radio, television,
internet or otherwise electronically, and whether to the public or to a section
of the public;
“Law” means the Financial Services (Jersey) Law 1998;
“provider”, in relation to a financial service
advertisement, means the person who (as provider and not as client) transacts
or would transact the financial service business to which the advertisement
relates;
“written”, in relation to a financial service
advertisement, includes printed or in such electronic form that the
advertisement can, by the use of a program that is readily available, be easily
rendered in a form that may be read by the human eye.
(2) For the purposes of
this Order, a written or broadcast financial service advertisement is taken to
be issued on each occasion on which it appears.
2 Application
of Order
(1) This Order applies in
relation to financial service advertisements that relate to the transaction of
any financial service business other than money service business.
(2) This Order does not
apply in relation to any of the following –
(a) an
advertisement that consists only of the communication of either or both of the
following –
(i) the name of a
business,
(ii) a
brief reference to a business without any invitation, suggestion or reference
to a specific service;
(b) an
advertisement that consists only of a statement that a business named in the
statement has sponsored a specified event, organization or person;
(c) an
advertisement that consists only of a prospectus –
(i) for an
unregulated fund, within the meaning of the Collective
Investment Funds (Unregulated Funds) (Jersey) Order 2008,
(ii) that
satisfies the requirements in Article 4(1) of the 2012 Order,
(iii) that,
in the case of a certified fund to which the Collective
Investment Funds (Unclassified Funds) (Prospectuses) (Jersey) Order 1995 (the “1995 Order”) continues to apply by virtue of
Article 12(4) of the 2012 Order, complies with the Schedule to the
1995 Order,
(iv) that,
in the case of a certified fund to which Part 3 of the Companies
(General Provisions) (Jersey) Order 2002 (the “2002 Order”) continues to apply by virtue of
Article 12(5) of the 2012 Order, complies with Part 3 of the 2002
Order, or
(v) in relation to which,
or the issue of which, the consent of the Commission has been obtained.[1]
(3) In
paragraph (2), “2012 Order” means the Collective
Investment Funds (Certified Funds – Prospectuses) (Jersey) Order
2012.[2]
3 Altered
advertisement
For the purposes of this Order, if an advertisement is altered, the
resulting advertisement is taken to be a new advertisement.
4 Publishers
For the purposes of this Order, a person whose business it is to
publish, or to arrange the publication of, advertisements (whether written or
broadcast) shall not be taken to issue a financial service advertisement merely
because he or she publishes it or arranges its publication if –
(a) he or she receives the
advertisement for publication in the ordinary course of his or her business;
and
(b) the matters contained
in the advertisement are not devised or selected (whether wholly or in part) by
him or her or by any person under his or her direction or control.
5 Identification
of issuer
For the purposes of Article 31(3)(b) of the Law, a requirement
in respect of a written or broadcast financial service advertisement is that
the advertisement shall specify –
(a) in every case, the name
of the person who issues it;
(b) in a case where the
provider is different from the person referred to in paragraph (a), the
name of that provider; and
(c) in every case either or
both of the following –
(i) a
geographical address for the provider to receive postal correspondence in
relation to the transaction of the financial service business to which the
advertisement relates,
(ii) an
address for the provider to receive electronic communications in relation to
the transaction of such business.
6 General
principles
For the purposes of Article 31(3)(b)
of the Law, a requirement in respect of a written or broadcast financial
service advertisement is that the advertisement shall –
(a) make
it clear (whether expressly or by necessary implication) that it is a financial
service advertisement;
(b) be
clear, fair and not misleading;
(c) name
the authority that has given authorization (if any) to the provider in relation
to the financial service business to which the advertisement relates, whether
that authority is the Commission, a relevant supervisory authority or another
authority;
(d) not
claim to have itself been approved by the Commission; and
(e) not
claim that any service provided in the course of the financial service business
to which the advertisement relates has been approved by the Commission.
7 Details
and copies of advertisements to be retained
For the purposes of Article 31(3)(c)
of the Law, a requirement in respect of a written or broadcast financial
service advertisement is that the person who issues the advertisement shall
keep, for 10 years after the last date on which the advertisement was
issued –
(a) a
copy or recording of the advertisement;
(b) a
record of the occasions on which the advertisement was issued;
(c) a
record of the identity of the person who approved the form and content of the
advertisement;
(d) a
record of the date on which that approval was given;
(e) a
record of the identity of the person who approved the issue of the
advertisement;
(f) a
record of the date on which that approval was given; and
(g) a
record of where and how the advertisement was disseminated.
8 Articles
do not apply to certain advertisements by overseas persons
(1) Articles 5 to 7 do
not apply to a written financial service advertisement issued to a person in
Jersey, being an advertisement that consists of a response by an overseas
person to an unsolicited approach to the overseas person by the first person.
(2) Articles 5 to 7 do
not apply to a written financial service advertisement that –
(a) is
issued (whether in person, by post or otherwise) in Jersey by an overseas
person personally to a client of the overseas person;
(b) relates
to a type or class of service that the overseas person has previously provided
for the client –
(i) before this Order
came into force, or
(ii) after
this Order came into force and in response to an unsolicited approach to the
overseas person by the client; and
(c) has
for its subject matter such subject matter as the client would reasonably
expect to be contacted about by the overseas person.
(3) In this Article
“overseas person” means a person who –
(a) has
no place of business in Jersey from which he or she carries on financial
service business in or from within Jersey; and
(b) is
not a company incorporated in Jersey.
9 Unsolicited
material
For the purposes of Article 31(3)(c) of the Law, it is a
requirement of this Order that a financial service advertisement not be issued unsolicited
personally to a person (whether in person or by post or otherwise) if he or she
has indicated to the person who carries on the financial service business to
which the advertisement relates that the first person does not want financial
service advertisements to be issued to him or her by, or on behalf of, the
second person.
10 Twelve-month
exemption for pre-existing advertising material
This Order shall not apply to a written or broadcast financial
service advertisement that is issued –
(a) before the first
anniversary of the day when this Order comes into force; and
(b) only in or as part of sales
material, or marketing material, that has been prepared in its final form
before the day when this Order comes into force.
11 Citation
This Order may be cited as the Financial Services (Advertising)
(Jersey) Order 2008.