Crypto-assets – digital representations of value or rights that can be transferred and stored electronically using distributed ledger or similar technology – are complex tools, but they are becoming increasingly popular and widespread, including in Italy, despite the current lack of a specific regulatory framework.
Crypto-assets are highly risky and speculative instruments, making them unsuitable for most consumers to use as an investment or means of payment or exchange. Clients must be aware of the risks of potentially losing their entire investment, of fraud or error, and of the lack of protection available to them. It is particularly important for clients to be aware that some crypto-assets have no intrinsic value, are not backed by any right to reimbursement and are generally not suitable for payment or investment purposes due to their highly risky nature.
Against this background, particular attention needs to be paid to the dangers posed by misleading advertising, including any social media advertising or influencer marketing, and high-return investment propositions, so that clear, accurate, non-misleading and responsible information is provided to the public, and in particular to retail investors.
– crypto-asset: a digital representation of value or rights that can be transferred and stored electronically, using distributed ledger or similar technology, including non-fungible tokens (NFT).
– distributed ledger technology (DLT): a type of technology that allows distributed recording (a ledger) of encrypted data among multiple participants in a network.
Marketing communication concerning crypto-assets:
- must comply with the provisions of Art. 27 of the Code of Marketing Communication Self-Regulation.
- must provide clear, complete, accurate and up-to-date information about the nature of the offer, the characteristics of the goods or services offered, including whether they can be traded on platforms, how they operate and the associated risks (e.g. price volatility and cyber risks), in a language that can be understood by an audience without special expertise or knowledge, taking into account the medium used to disseminate the information, so that they can understand its true scope and make informed choices about the use of their resources.
- must clearly and visibly warn the public that these are assets whose purchase and subsequent deposit may result in the loss of all the funds invested. Such warnings must be prominent in the message, clearly understandable for the audience regardless of the medium used, and not be contradicted by the overall impact of the message. The following are some possible phrasings to be used: “Trading in crypto assets is unregulated, it might not be suitable for retail investors and you may lose the entire amount invested” or “Crypto assets are unregulated and can be very risky. There is no regulatory remedy for losses resulting from such transactions.“
- if the message refers to an offer with restrictions, it must explicitly state the period of validity or any other variable to which it is subject (e.g. reaching a certain volume).
- must not create a sense of urgency for action by taking advantage of the public’s lack of experience or readiness to believe.
- must make it clear whether the primary purpose of the offer is for investment purposes – i.e. potential capital growth against the risk of capital loss – or whether it is actually aimed at the purchase of services offered through technological platforms (e.g. utility tokens—a type of crypto-asset that is exclusively aimed at providing access to a good or service offered by the token issuer).
- must not present crypto-assets as a solution to personal or financial problems, must not represent them as a way to improve one’s financial and economic situation, must not suggest that they offer an opportunity for success or life change, and must avoid creating false or disproportionate expectations.
- must not minimise or trivialise the risks associated with these assets, thereby creating a sense of overconfidence in the solutions offered. The details provided of the risks associated with trading crypto-assets must be at least equal to that of the potential rewards.
- if distributed through the Internet, must comply with the Digital Chart Regulation. Celebrities, influencers, bloggers and other similar figures for Internet users whose actions could potentially influence the public’s business decisions need to be particularly careful as to the statements and claims they make to avoid misleading consumers.
- where reference is made to the returns achieved, these should be calculated over representative periods given the nature of the investments and the fluctuations in performance: for example, a period of more than 12 months is considered sufficiently representative. The message should also always indicate the source of the information used.