Do Influencers Escape Legal Liability Using “Not Financial Advice” Disclaimers?
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- Saying “Not Financial Advice” or “Do Your Own Research” will not protect influencers if they promote something illegal or a scam.
- Influencers can be held responsible if they promote a bad investment, and how responsible they are depends on how involved they were and what the investment is.
- Whether the influencer made money or not does not change their responsibility for promoting something that was not good for the people who followed their advice.
While the collapse of the investment scheme of Lele Gold may be just another story of a scam going bust, it is interesting to examine how influencers promoting it reacted after the Securities and Exchange Commission (SEC) issued an advisory about it.
The recent collapse of Lele Gold has brought attention to the role of influencers, content creators, and key opinion leaders (KOLs) in promoting financial products and services to their followers and audience. With phrases like “Not Financial Advice” and “Do Your Own Research (DYOR)” being used to promote these products, the question remains whether these words absolve the promoter from legal liability in the event of a bad investment, rugpull, or scam.
Does the use of “Not Financial Advice” disclaimer absolve responsibility?
According to Edsel Tupaz, Partner at Gorriceta Africa Cauton & Saavedra, there is nothing that can absolve a person when they promote an illegal scheme.
“Suffice it to say that no amount of legal disclaimers will absolve scammers for rug pulls, pump and dumps, and other malicious schemes,” he shared with BitPinas.
According to Rafael Padilla, a Blockchain Lawyer and author of Fintech: First Law and Principles, the use of “Not Financial Advice” and “Do Your Own Research” do not absolve creators from responsibility if the project they promoted turns out to be a scam or rugpull.
Padilla states, “Disclaimers like “Not Financial Advice” and “Do Your Own Research” are not relevant, legally speaking, if they are disingenuous and not supported by substance and inconsistent with their action.”
An example, he said is when “you see a lot of so-called crypto coaches actually give financial advice immediately after giving the disclaimer “Not Financial Advice”, even if they are not licensed investment or financial advisers. In law as in life, action speaks louder than words.”
What is the liability of influencers in the event of losses?
Padilla states that the liability of influencers and content creators would depend on the nature of the underlying crypto asset as well as their extent of involvement.
If the asset prompted is a crypto investment in the nature of security
The influencer can be criminally, civilly, or administratively liable as an unlicensed promoter or investment adviser under the Securities Regulation COde (R.A. No. 8799) and the Financial Products and Service Consumer Protection Act (R.A. No. 11765).
Padilla says this is especially true if it “can be proven that the influencer or content creator’s participation is willful and deliberate.”
If the crypto asset is a non-security (like a utility token or an NFT)
“The influencer and content creator could possibly violate the provisions of the Consumer Act (R.A. 7394) on false, deceptive or misleading advertisements, exposing them to civil liabilities or administrative sanctions,” Padilla said.
It is the Department of Trade and Industry (DTI) that oversees how non-security crypto products are advertised or promoted whether they are consistent with the Consumer Act.
If the influencer is only “negligent”
Padilla shared that even discounting the fact that what is promoted is a crypto asset or not, negligence, or the failure of the influencer to conduct due diligence to the product they are promoting will still make the influencer liable. “The legal regime that will determine the influencer’s liability would be the law on torts and quasi-delicts, as governed by the Civil Code of the Philippines (R.A. No. 386),” he added.
Is “amount of money lost” important?
Padilla said the liability of the promoter could arise regardless of whether or not their followers made money or lost money.
“The extent of loss will magnify the potential liability of the influencer, but it is not usually an element in determining whether a violation of the law (regarding false, misleading or fraudulent advertising) has been committed.”
The collapse of Lele Gold has shed light on influencer responsibility, particularly in the crypto and NFT space. It may not be the last scam that will go bust, but the lessons should be taken note by not just influencers but everyone in the space, including content creators, writers, and streamers going forward.
This article is published on BitPinas: Do Influencers Escape Legal Liability Using “Not Financial Advice” Disclaimers?
Disclaimer: BitPinas articles and its external content are not financial advice. The team serves to deliver independent, unbiased news to provide information for Philippine-crypto and beyond.