Studio Legale Beltramo
On July 7 1999, Commissione Nazionale per le societá e la borsa (CONSOB) issued a communication which has clarified certain aspects relating to the activities of solicitation and placement of investment services and financial instruments through the Internet.
The new Unified Text of Rules on the Financial Markets (Lgs. D. No. 58/98) and in particular Article 32 required CONSOB to approve specific rules applicable to the activities of solicitation and placement of investment services and financial instruments through means of communication at a distance, ie by means different from advertisements, which imply contact with prospective clients, but not a simultaneous physical presence of the offeror and of the client.
By Resolution No. 11522 of July 1 1998, CONSOB approved such new regulations, which set forth that solicitations and placements which enable a personalized communication and an immediate interaction with the investor should be carried out through the mediation of a financial promoter.
Some doubts, however, arose on whether or not the Internet was to be considered as communication at a distance and in particular whether it should be considered as a personalized communication and an immediate interaction with the investor, which would require the mediation of a financial promoter.
CONSOB has clarified that:
- websites and e-mails are means of communication at a distance and are therefore governed by Resolution 11522, irrespective of the fact that the site manager cannot contact the investors;
- there is no obligation to use a financial promoter for the activity of solicitation and placement through a website, due to the particular features of this instrument;
- in case of solicitation and placement through e-mail there is the need for a financial promoter, except for unsolicited messages, descriptive information and confirmations of instructions received from the investor; and
- the activities of solicitation and placement through the Internet are deemed to be carried out in Italy if the addressee of the e-mail is a person residing in Italy or if the website is directed at persons residing in Italy.
CONSOB has specified in detail the elements that suggest whether a website can be considered directed at persons residing in Italy or abroad (with regards to the contents of the website and other related circumstances).