1. Purpose of this Notice

This is a joint staff notice by the Canadian Securities Administrators (CSA) and the Investment Industry Regulatory Organization of Canada (IIROC and together with the CSA, we). We are publishing this staff notice (the Notice) because we have recently become aware of certain advertising activities and marketing strategies by platforms that trade crypto assets (Crypto-Trading Platforms, or CTPs) that may breach certain requirements of securities legislation and/or raise investor protection or public interest concerns.

This Notice provides guidance for CTPs on how requirements under securities legislation 1 and IIROC rules relating to advertising, marketing and the use of social media may apply to them.

1. Application of securities legislation to CTPs

As explained in CSA Staff Notice 21-327 Guidance on the Application of Securities Legislation to Entities Facilitating the Trading of Crypto Assets (CSA SN 21-327),2  if crypto assets that are securities and/or derivatives are traded on a CTP, the CTP would be subject to securities legislation. In addition, securities legislation may apply to CTPs that facilitate the buying and selling of crypto assets, including crypto assets that are commodities, because the user’s contractual right relating to the crypto asset may itself constitute a security and/or a derivative.

When we refer to a CTP in this Notice, we are referring to a CTP that is subject to securities legislation because it trades securities and/or derivatives and is therefore a dealer CTP and/or a marketplace CTP.3

1. Scope of this Notice

This Notice includes an overview of the principal requirements under securities legislation and IIROC rules in relation to advertising and marketing, including through the use of social media, and is intended to assist

• CTPs that are registered as a dealer under securities legislation (registered CTPs),

• CTPs that have or will be applying for registration as a dealer but are not yet registered (prospective CTP registrants), and

• other registrants that may be considering establishing a CTP as a new business line.

The Notice provides guidance regarding

• statements in advertising and marketing materials that could be considered false or misleading,

• concerns over the use of gambling-style contests, promotions or schemes, such as the offering of bonuses or rewards based on the level of trading, that may encourage excessive trading by retail investors,

• compliance and supervisory challenges when using social media to promote CTPs, and

• complying with securities legislation generally.

We have included examples of statements that could be considered false or misleading in Appendix A.

We remind registered CTPs and prospective CTP registrants that CSA staff may review advertising and marketing as part of the registration review process and following registration as part of a compliance review. False or misleading advertising and improper marketing strategies raise concerns relating to the fitness of the firm and its principals for registration (particularly in terms of the fitness for registration criteria of integrity and proficiency).

While we provide guidance on ways that registered CTPs and prospective CTP registrants can meet their obligations, these are examples only. A CTP can use other methods provided the CTP complies with securities legislation and, if applicable, IIROC rules.   

CSA members may take enforcement action against CTPs, including foreign-based CTPs that have investors in Canada, that do not comply with the requirements of securities legislation.

1. Summary of securities legislation and IIROC Rules in relation to false or misleading advertising

A number of provisions in securities legislation and IIROC rules apply to prohibit false or misleading statements in advertising or marketing materials. These prohibitions can apply to the making of statements

• that suggest that a CTP is registered under securities legislation where this is not the case
• that suggest that a securities regulatory authority or regulator has approved or endorsed the CTP, any products offered on the CTP or any disclosure or other representation made by the CTP; or
• about any matter that a reasonable investor would consider relevant or important in deciding whether to enter into or maintain a trading or advising relationship with the CTP if the statement is untrue or omits information necessary to prevent the statement from being false or misleading in the circumstances in which it is made. 

In addition, registered CTPs should consider their advertising and marketing strategies in the context of their obligation to treat their clients fairly, honestly and in good faith under securities legislation and, if applicable, IIROC rules.  Moreover, a registered CTP should consider how the advertising and marketing affects its obligations under Part 13 of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103) and, if applicable, equivalent requirements in IIROC rules relating to:

• know-your-client, know-your-product and assessing suitability, and
• identifying and responding to conflicts of interest in the best interest of the client.  

1. Concerns over improper "gambling style" promotions and schemes

We have recently noted some CTPs using advertising or marketing strategies that include contests, promotions, bonuses and time-limits to encourage investors to engage in trading and to act quickly for fear of missing out on an investment opportunity or a reward.  For example, a promotion involving a bonus scheme may offer a financial reward or a bonus interest in a particular type of crypto asset for the first 500 investors who take an action within the next 24 hours.

We are concerned that some of these strategies may inappropriately encourage investors to engage in excessively risky trading, taking on risks that they would normally avoid. 

We wish to remind CTPs that registered dealers have an important role as gatekeepers of the integrity of the capital markets. They should not, by act or omission, engage in or facilitate conduct that brings the market into disrepute.  Advertising and marketing strategies designed to encourage excessively risky trading may, depending on the circumstances, violate the registrant’s obligation to treat clients fairly, honestly and in good faith.

In addition, advertising and marketing strategies designed to encourage trading may be considered a form of solicitation or invitation to trade and may therefore trigger suitability obligations for registered CTPs.  These suitability obligations can apply to recommendations relating to global trading strategies as well as individual securities. Some CTPs have or will seek an exemption from suitability on condition of not providing recommendations or advice.  CTPs relying on such exemptions must exercise caution to ensure that actively soliciting trading through advertising is not inconsistent with the conditions of their exemption.4

1. Compliance and supervisory expectations for firms using social media

We expect registered CTPs to consider compliance and supervision when using social media websites and platforms (social media sites) as a means of communicating with clients and the general public for business purposes. They must maintain records of their business activities, financial affairs and client transactions.5 The use of social media sites increases the risk that registered CTPs may not be retaining adequate records of their business activities and client communications. This is the result of interactive social media web sites that include the posting of both real time and static content. Registered CTPs must design systems that allow for compliant record retention as well as retrieval capability.

The use of social media web sites is also challenging in terms of supervision, and CTPs must determine the level or extent of supervision necessary, particularly considering the provisions in securities legislation relating to the use of misleading and false statements. This may include the use of a risk-based approach to determine whether a CTP’s review of electronic communications is sufficient to meet its supervisory obligations. These supervisory obligations are not just restricted to social media use by the CTP but also by its directors, officers, employees, shareholders and other third-parties acting on behalf of the CTP.

1. Guidance on policies and procedures

CTPs are required to adopt appropriate policies and procedures governing the use of social media for marketing. The policies and procedures should provide for:

• the review, supervision, retention and retrieval of advertising and marketing materials, including marketing done on social media web sites,

• the designation of an appropriate individual to be responsible for the supervision or approval of marketing communications, and

• a system to monitor compliance with policies and procedures, including record retention and retrieval capability.

1. Complying with Securities Legislation

We encourage CTPs to consult with their legal counsel and to contact staff of their local securities regulatory authority on the appropriate steps to comply with securities legislation and IIROC rules.

As the technology and operational models of CTPs continue to evolve, the CSA and IIROC welcome continued dialogue with CTPs and stakeholders on issues that are developing and possible ways of complying with requirements and additional areas where flexibility may be appropriate.

1. Questions

Please refer your quesitons to any of the following CSA and IIROC staff: 

Appendix A

Examples of statements that could be considered false or misleading

• 1As defined in National Instrument 14-101 Definitions and includes legislation related to both securities and derivatives. 
• 2https://www.securities-administrators.ca/news/canadian-securities-regulators-publish-additional-guidance-for-entities-facilitating-the-trading-of-crypto-assets/
• 3For clarity, CTPs that trade securities and/or derivatives may be dealers and/or marketplaces as defined in securities legislation.  The primary focus of this notice is on CTPs that operate as dealer platforms.  However, in some situations, a CTP may be carrying out activities that have elements of both marketplace platforms and dealer platforms, and this Notice describes how existing regulatory requirements could apply to these CTPs.  For more information about marketplace platforms and dealer platforms, please see Joint CSA-IIROC Staff Notice 21-329 Guidance for Crypto-Asset Trading Platforms: Compliance with Regulatory Requirements (CSA SN 21-329) https://www.securities-administrators.ca/uploadedFiles/Industry_Resources/JointCSAIIROCNotice21-329(March29_2021).pdf 
• 4For helpful guidance on this point, see the reference to an IIROC publication in footnote 9.
• 5Subsection 11.5(1) of NI 31-103.
• 6Section 6.9 of National Instrument 21-101 Marketplace Operation.
• 7See s. 8.25(2) [Advising generally] of NI 31-103.  In Ontario, see s. 34(1) of OSA.  In British Columbia, see also Proposed British Columbia Instrument 51-519 Promotional Activity Disclosure Requirements
        https://www.bcsc.bc.ca/securities-law/law-and-policy/bc-notices/current/bcn-202103-may-26-2021
• 8See CSA Investor Alert: Investment scams imitating well-known financial brands (May 31, 2021), available at https://www.securities-administrators.ca/aboutcsa.aspx?id=2061
• 9See IIROC Guidance on Order Execution Only Services and Activities at https://www.iiroc.ca/news-and-publications/notices-and-guidance/guidance-order-execution-only-services-and-activities