A regulator opening a marketing review rarely starts with the creative. It starts with the call log. Where did the phone number come from, when did the person agree to be contacted about leveraged products, and can you show the record. Firms that cannot answer those three questions have already lost the argument, no matter how careful the risk warnings on the website are.
Promotion rules across the major regimes converge on the same structure: unsolicited contact about high-risk products is restricted or banned, every promotion must be fair and clear with prominent risk disclosure, someone authorised must approve it, and the licensed firm remains responsible for what its affiliates say. The details differ by jurisdiction. The structure does not.
Cold calling is a consent question
The classic offshore call centre model, buying a lead list and dialling it, sits outside what most developed regulators permit. In the European framework and in the United Kingdom, contacting a retail consumer with an investment promotion they did not ask for is either prohibited or hedged with conditions that make it commercially pointless. Enforcement usually comes through two doors at once: the financial regulator on the promotion, and the data protection authority on the lawful basis for processing the number.
Consent has to be specific and evidenced. A tick box on an unrelated giveaway is not consent to be called about contracts for difference. Nor does a lead vendor's assurance transfer the liability, because the firm making the promotion carries it. Where a broker is licensed offshore but the calls land on European consumers, the exposure is the same as if the firm were local, which is the trap described in marketing offshore products into the EU and in the reverse solicitation myth.
What a compliant promotion contains
The content rules are less dramatic and easier to satisfy. A promotion must be identifiable as marketing, must not present benefits without the corresponding risks, and must carry a risk warning that is prominent rather than buried in a footer. Past performance, where shown at all, needs the period and the caveat that it does not indicate future results. Bonuses and trading incentives are restricted in several regimes, covered separately in bonus bans, and leverage advertising has its own limits under the ESMA caps.
The wider set of content restrictions on retail derivatives advertising, including the standardised loss-percentage warning many firms must display, sits in CFD marketing restrictions. The underlying conduct obligation that all of this hangs from is the fair, clear and not misleading standard in MiFID II.
Approval is a named function, not a habit. In several regimes a promotion has to be signed off by an authorised person before it goes out, and the sign-off record is the first document requested when a complaint arrives.
Finfluencers changed the enforcement pattern
Regulators spent years supervising television and print, where the advertiser was obvious. Social media broke that model. A trader with a large following posts a screenshot of a winning position and a referral link, and the question becomes whether that post is a financial promotion made on behalf of a firm. Increasingly the answer is yes, and several regulators have said so publicly and pursued both the poster and the firm paying them.
Three features move a post from opinion into promotion territory: a call to action, a commercial relationship with the firm, and specificity about a product. A general comment about gold price direction is opinion. The same comment with a sign-up link and a revenue share behind it is an advert, and it needs the same warnings and approval as a billboard would.
For a broker, the practical exposure is that you do not control the phrasing. An affiliate promising outcomes, showing account balances or implying that profits are likely creates a liability you inherit. Contractual language alone will not solve it. The controls that do work are pre-approval of creatives, a documented prohibited-claims list and periodic monitoring of what partners actually publish, which we set out in affiliate compliance rules and in influencer marketing for trading firms.
Where the liability lands
Firms often assume a chain of separation protects them: the licensed entity signs a marketing services agreement with a group company, which contracts an affiliate network, which recruits publishers. In practice a supervisor collapses that chain and asks who benefited from the client. The licensed firm did, so the licensed firm answers for the promotion. Payment structures based purely on volume make this worse, because they document an incentive to oversell.
The record keeping matters as much as the policy. Call recordings, consent evidence, approved creative versions with dates, and the list of active partners with their channels. When a review lands, the firm that can produce that file in an afternoon is treated very differently from the firm that reconstructs it over three weeks. What that inspection feels like in practice is described in broker audits.
A workable position
The commercially sane approach in regulated markets is to stop buying outbound lists entirely and build inbound acquisition where the consent is created on your own property: a form, a course sign-up, a newsletter with clear wording about what the person is agreeing to receive. It is slower and the cost per client is honest rather than hidden in enforcement risk. Every firm we work with that made that switch found the compliance burden dropped and the complaint volume dropped with it. This article describes rules as they generally apply and is not legal advice; the specific obligations depend on your licence and your clients' countries.
"Every enforcement file I have read starts the same way. Somebody bought a list, somebody dialled it, and nobody kept a record of where the consent came from."
— Roman Onta, Executive Director, SINGUARD
Key Takeaways
- The first question in a marketing review is where the contact details came from and what the person consented to, not what the advert said.
- Unsolicited promotion of leveraged products to retail consumers is restricted or banned across the major developed regimes, and data protection rules apply in parallel.
- A social post becomes a financial promotion when it combines a call to action, a commercial relationship and product specificity, and the paying firm shares the liability.
- Contracts do not transfer responsibility for affiliate claims; pre-approved creatives, a prohibited-claims list and active monitoring do the actual work.
Frequently Asked Questions
Is cold calling about trading products illegal?
It depends on the jurisdiction and who is being called. In the United Kingdom and across the European regimes, unsolicited promotion of high-risk investments to retail consumers is restricted or prohibited, and separate data protection law governs whether the firm may process the number at all.
Are finfluencers regulated?
Regulators treat a paid or commissioned post that promotes a specific financial product as a financial promotion, which brings approval, fairness and risk warning obligations. Several authorities have taken action against both the individual posting and the firm behind the referral link.
Who is responsible if an affiliate makes a false claim?
The licensed firm that receives the client is generally held responsible, regardless of how many intermediaries sit between it and the publisher. Contractual indemnities may allocate cost afterwards but they do not remove the regulatory responsibility.
About the Author
Roman Onta is an Executive Director at SINGUARD. He builds the Prop Firm CRM, the Broker CRM, Scalegram and CopySignals side by side with his brother Alex Onta, and he helped on the design of eTrader, the division Alex built and leads. His ground is worldwide payment processing, AML compliance and the corporate structures brokers are built on, work the two of them carry together, shaped by executive roles in the UAE and international corporates. He lives and works in Dubai for most of the year. Meet the executive duo leading Singuard's five divisions.