Fintech providers operating without an AFSL or credit licence (ACL) could find themselves in ASIC's crosshairs, warns commercial law firm The Fold.
The Fold managing director Claire Wivell Plater said start-up technology businesses that are operating or “dabbling” in financial services need to research whether what they are doing requires an AFSL or ACL.
“There is a lot of focus on [financial technology] businesses at the moment. We are concerned that some of these wonderful, innovative companies starting out may be setting themselves up with a target on their backs,” Ms Wivell Plater said.
“These businesses need to get expert advice at a very early stage because they need to be either building their business in a way that doesn’t provide a financial service, putting boundaries in place to ensure they are not crossing over into providing a financial service, or biting the bullet and actually getting a licence.”
Ms Wivell Plater added that financial technology businesses may think simply providing information or analysis means they do not need an AFSL.
She explained that these businesses need to take care with this approach and be sure the material they supply does not turn into financial product advice.
“It’s complex,” Ms Wivell Plater said. "If, for example, a website contains a recommendation about or even just compares financial products, that’s likely to be a financial service.
“Any information that is an opinion that could influence a person’s decision to purchase the product can be a problem if the business does not have its licensing in order,” she said.
She also pointed out that ASIC is constantly on the look-out for businesses that are providing credit or financial services without a licence.
“If you’re providing a financial or credit service without a licence, then go to ASIC and apply," she said. "ASIC will rightly ask why you do not already have one.
“It is a much larger hurdle to overcome. If you haven’t properly checked the requirements and your obligations, then why should ASIC trust you are going to comply going forward?”
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