No. | Marketing Regulation | Topic | Guidance |
1. | I.A.1
I.A.2 | “advertisement, inducement, solicitation, offer or promotion” | The scope of terms which define Marketing are intended to be sufficiently broad in order to cover all forms that Marketing may take. Readers should note that the list in Marketing Regulation I.A.2 only aims to provide examples of communications and activities, which may qualify as Marketing however the list is non-exhaustive. VARA will take all relevant circumstances into consideration when assessing whether a communication or activity qualifies as Marketing, including, but not limited to:
| | • | the content; | | • | the target audience; | | • | how the communication or activity is publicised or otherwise made available; | | • | the relevance between the communication or activity, and a Virtual Asset and/or a VA Activity; | | • | whether there is a commercial purpose behind the communication or activity; | | • | the intents(s) and/or objective(s) behind the communication or activity; and | | • | VARA's objectives as a regulator.
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2. | I.B.1 and throughout | “in or targeting the UAE” | Below is a non-exhaustive list of factors that VARA may consider in determining whether a campaign or any Marketing is “in or targeting the UAE". Not all factors need to be present for Marketing to be deemed “in or targeting the UAE" and, likewise, the absence of any one factor does not mean a campaign will not be deemed to be in the UAE, or be targeting the UAE.
| | • | Any element of the overall campaign is in the UAE, including, but not limited to, advertisements on any physical structures, local newspapers, mail, broadcast (whether online or through other channels), or any physical event; | | • | Campaigns targeting member states of the Gulf Corporation Council (GCC) as a whole will by default be deemed to include the UAE; | | • | Campaigns that select the GCC/UAE as a location; | | • | UAE specific press related to the campaign; | | • | AED is used as the denominator currency or one of the denominator currencies in Marketing materials; | | • | Campaigns with Emirati Arabic dialect or uses local slang, 'in words' or phrases (either in English or Arabic); | | • | Campaigns using UAE and/or Dubai imagery (including, but not limited to, the UAE flag, Dubai skyline); | | • | Campaigns using UAE celebrities or famous individuals with large influence base/followings in the UAE; | | • | Any Marketing in public areas in the UAE; | | • | Maintaining any communication channels which target UAE residents (e.g. chatrooms or social media pages); | | • | Promotional plan(s) specifically addressing/intending to target the UAE; and/or | | • | Restrictions (if any) that have been put in place to prevent or restrict UAE residents from accessing Marketing materials (e.g. geoblocking of websites or advertising campaigns).
| VARA will assess whether Marketing is “in or targeting the UAE", in the context of the overall campaign in which it is carried out. All campaigns will be considered as a whole in terms of the channels used and the content of all materials.
For example, an advertisement shown in search engine results may be considered as part of the same campaign as an advertisement on a physical billboard if they are linked in any way, such as the time period during which they are carried out, or if they contain the same or similar content or themes.
The UAE is used in this context, as opposed to the Emirate of Dubai only, because VARA deems any Marketing that targets the UAE to, by default, be targeting Dubai. This is because VARA does not view it as likely that a campaign or any Marketing can target the UAE and adequately carve out Dubai – unless it is explicitly specified in every communication, which may be reviewed and proven on a case by case basis.
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3. | I.C.2.a | “fair, clear and not misleading” | The purpose of requiring Marketing to be “fair, clear and not misleading” is to allow industry participants and investors to make informed decisions based on Marketing materials. VARA will consider the overall impression given to the audience when assessing whether a particular instance of Marketing is “fair, clear and not misleading”.
How this requirement applies would depend on the nature and overall context of the Marketing. For example, memes or short videos may constitute Marketing and how these can be presented in a way which is “fair, clear and not misleading” will be very different compared to how long form articles can comply with the same requirement.
Generally, the following principles should be taken into consideration when designing Marketing materials:
Plain language:
Marketing should use plain language that is easily understood by the target audience. Clear and concise language is likely to enhance the transparency and effectiveness of the communication.
Clearly legible or audible:
Marketing in written form should be easily legible or, in the case of oral communications, clearly audible. In particular, information which may be material to the target audience’s understanding of the nature and risks of a product or service must be clearly communicated.
Proportional:
The “fair, clear and not misleading” requirement should be assessed in a manner which is proportionate to the means of communication, content, target audience and/or the nature of the product or service being promoted. Different audiences may require variations in the content and presentation of the Marketing materials, for instance Marketing addressed to broad retail clients may need to include more information on potential risks of investments.
Balanced picture:
Marketing materials should provide a balanced impression of the product or service being promoted, so that recipients can make informed investment decisions. For example, Marketing materials should not emphasise or exaggerate potential benefits or investment returns without indicating relevant risks and should not omit or obscure important information, statements, or warnings.
If a comparison between a product or service and its competitors is included, it should be presented in a fair, balanced, and meaningful manner. Misleading or biased comparisons should be avoided.
Clarity on regulatory status:
Marketing should clearly state the regulatory status of any product, service and/or platform involved, whether in the Emirate of Dubai or, if applicable, other jurisdictions. This includes not containing messages which may mislead the public with regards to a business’s licensing status or scope of regulated activities.
For example, a person must not present VARA’s approval of the issuance of a Virtual Asset as a regulator’s endorsement of the quality of the Virtual Asset or its issuer.
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4. | I.C.2.b | “clearly identifiable as marketing or promotional in nature” | Marketing should be obviously identifiable as such, with a clear commercial intent. If it is not obvious from the context that it is promotional in nature, it should include wordings such as “ad”, “advertisement”, or “advertisement feature”, or “promotional/sponsored content” in a prominent place.
For example, large billboard advertisements in public areas, will be viewed as being obviously identifiable as promotional in nature without the need for additional wording as it is widely understood by the public that such areas are used for advertisements.
However, social media posts can include both promotional and non-promotional content and as such must be identified as Marketing.
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5. | I.C.2.k | “clear and prominent indication that such content was posted, publicised or otherwise presented as part of a remunerated arrangement” | Marketing should generally satisfy the below if it is posted, publicised or otherwise presented as part of a remunerated arrangement.
| | • | For any sponsored content, to clearly state that the content is sponsored, along with the name of the sponsor (if the sponsor is not readily identifiable from the content) (e.g. “sponsored content”, “sponsored by ABC VASP”, “paid content brought to you by ABC VASP”, “in paid partnership with ABC VASP”) in a prominent place of the content (e.g. next to the heading of the content). | | • | For any social media post which is a paid advertisement, to ensure that the post is clearly labelled and obviously identifiable as advertising by including wordings such as “ad”, “advertisement”, “promoted” or “sponsored” (or hashtags of such terms) in a prominent place of the post. | | • | The abovementioned wordings or hashtags must be legible and easy to identify when viewing the content as a whole and on different types of devices (e.g. desktop, mobile or other devices).
| Remunerated arrangements include any form of monetary or non-monetary remuneration, as well as other value in kind.
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6. | I.C.2.l | “monetary or non-monetary incentive” | Below is a non-exhaustive list of offers which may qualify as monetary and non-monetary incentives. These include offers of:
| | • | incentives when investing in a Virtual Asset for the first time, or signing up for an Entity’s service provided as part of any VA Activity for the first time; | | • | incentives where the client refers another Entity to invest in a Virtual Asset or use an Entity’s service provided as part of any VA Activity; | | • | special offers when investing a particular amount in Virtual Assets; | | • | offer of gifts or other incentives once an investment in a Virtual Asset has been made or once an Entity has signed up for an Entity’s service provided as part of any VA Activity; or | | • | offer of gifts or other incentives for making additional investments when already using a product and/or service.
| Non-monetary incentives do not include information and/or research tools.
Monetary or non-monetary incentives should be made available for an adequate period of time so that they do not create a sense of urgency for recipients of Marketing to acquire Virtual Assets and/or use services as part of any VA Activities in anticipation of future appreciation in value or profits, or create a fear of missing out on future appreciation in value or profits due to inaction, in compliance with Marketing Regulation I.C.2.h. A monetary or non-monetary incentive should not be used or presented in Marketing in a way that it is likely to divert or mislead the viewers’ focus from the proper consideration of a product or service being marketed, including any actual or potential risks associated with such product or service. For example:
| | • | the description or image of an incentive in the Marketing should not be given excessive prominence in the overall presentation of Marketing. In particular, the risk disclosure or disclaimer to be included in the Marketing should not be overshadowed by the description or image of an incentive in the Marketing. | | • | if any monetary incentive is being offered (e.g. any bonus or discount) the offer must also include information on the ongoing charges that will apply after the incentive period has ended, and such information must be given similar prominence and in close proximity to the information about the monetary incentive in the Marketing.
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7. | I.C.3.b/
I.D.1.c/
I.D.1.e/
I.D.2.b/
I.D.2.d/
I.F.1.d | “prominent disclaimer” | Prominent generally means unmissable – i.e. is easily seen or heard, and is likely to attract the attention of the viewer. Prominence of certain wordings/images in the content of Marketing will require to be adapted to size, colour or position of the wordings/images in the overall content.
A disclaimer or any other indication to be included in Marketing as required by the Marketing Regulations should comply with the following in order to satisfy the “prominent” requirement, depending on the nature of the Marketing:
| | • | the disclaimer/indication is legible or audible, and easy to spot (i.e. not written in small font sizes or unclear type styles, or being in a colour which blends with the colour of the background, languages which are not commonly understood in the market, playback speeds which are too quick to be understood); | | • | the size of the disclaimer/indication is proportionate, taking into account the content, size and orientation of the Marketing as a whole; | | • | the positioning of the disclaimer/indication is not outside of, or distant from, the main content of the Marketing; | | • | the disclaimer/indication should not be obscured through the close proximity of promotional and/or other content in the Marketing; and | | • | available for a sufficient period of time given the overall context of the Marketing, for example long form audio content should consider repeating the disclaimers/indications at both the start and end, while video content should consider a running ticker throughout the duration of play.
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8. | I.C.3.d | “prior consent or expression of interest” | Consent would include valid consent under existing data protection laws, which allow for Marketing.
An expression of interest is intentionally broader than consent to allow for other ways in a wide range of cases where prior consent may be practicable, yet this requirement can be met, for example using a particular DLT or other technology, being a member of a group within a closed network etc.
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9. | I.D.1 | “in its capacity as a journalist” | Journalists for the purpose of the Marketing Regulations shall include:
| | 1. | media personnel (content creators and/or presenters) that are duly licensed by the Media Regulatory Office of the UAE; and | | | 2. | foreign media correspondents that are duly accredited by the Media Regulatory Office of the UAE.
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| “Key opinion leaders” and/or influencers are not regarded as journalists and do not qualify for consideration under the journalistic exemption.
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10. | I.D.1.b/
I.D.2.a | “overall purpose” | VARA will assess the overall purpose of content to determine whether it qualifies for the respective exemption, or whether the content is Marketing.
In doing so, VARA will consider whether the content taken as a whole – including any promotional material contained in it – including merchandise and/or give-aways at events, charities, ceremonies etc. – is for the promotion of any Virtual Asset or service provided as part of a VA Activity or the VASP.
In assessing the overall purpose of the content, VARA will also consider the overall impression of the content in light of the publication, broadcast or website (or any other medium) under which the content is published and disseminated. For example, VARA may consider all the contents of a publication, broadcast or website (or any other medium), including any features such as chatrooms, advertisements or other promotional material, in assessing the principal purpose of a particular content published under such publication, broadcast or website (or any other medium).
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11. | I.D.1.c/
I.D.2 | “nature of the author Entity’s interest” | The disclaimer should contain the following information in relation to the Virtual Asset, VA Activity and/or VASP to which the content relates, as applicable:
| | • | type and/or name of the interest (e.g. ownership of a Virtual Asset); | | • | if the interest is any form of business, advisory, and/or professional arrangement, details of such arrangement (e.g. the position held by the author Entity and the name of the VASP that has engaged the author Entity; any membership/board or advisory capacity/partnership with shareholding in the VASP which is the subject of the content); and | | • | if the interest is a potential benefit or avoidance of loss, details of such potential benefit or how a loss may be avoided.
| Examples of permissible disclaimers are set out below:
| | • | “(Name of an Entity), the author of the content, owns a fair share of (VA Name) – X% relative to all other assets in portfolio.” | | • | “(Name of an Entity), the author of the content, is the Chief Operational Officer of (Name of the VASP which is the subject of the content).” | | • | “(Name of an Entity), the author of the content, is the co-organiser of the (Event Name) along with (Name of the VASP which is the subject of the content).”
| Please also see guidance on “prominent disclaimer” in item no. 7, above.
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12. | I.D.2 | “educational content” | Educational content generally means content which is purely educational and for informational purposes only without the intention of leading the recipients to engage in the activity of investing in a Virtual Asset or signing up for a service provided as part of a VA Activity.
Educational content which does require buying a Virtual Asset for use, or using a service provided as a VA Activity, at any stage, should limit these to where they are necessary and provide multiple options, or explain that multiple options are available, where possible.
Content which is sponsored or paid for in return for any monetary or non-monetary benefit for the author Entity will not qualify as “educational content”.
Readers are reminded that educational content must still include prominent disclaimers where they are required in the Marketing Regulations, as applicable.
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13. | I.D.3 | “purely personal or private communications” | Communications which would be considered purely personal or private will only include friends, family or colleagues.
Any communications which are accessible by fifty (50) individuals or more in aggregate, whether directly or indirectly, would not be considered personal or private. Communications which are accessible by fewer than fifty (50) individuals may still be considered as Marketing, and not deemed to fall within this exemption.
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