Internet Government Regulations for Web Businesses
Internet businesses are subject to a number of domestic and foreign laws and regulations that affect corporations using the Internet as their business platform. The interpretation of laws and regulations pertaining to the privacy of users, freedom of expression, content, advertising and intellectual property rights in the United States and in foreign jurisdictions may at times be unclear or unsettled. Additionally, rules and regulations in these areas are being debated and considered for adoption in other countries, and internet businesses face risks from proposed legislation that may be adopted in the future.
In the U.S., laws governing the liability of Internet companies offering online services for the activity of Website users and/or other third parties, are currently being tested by a number of claims. Cases include actions for libel, slander, invasion of privacy and other tort claims, unlawful activity, trademark and copyright infringement, as well as other theories based on the nature and content of the materials searched, the ads posted, or the content generated by users. Certain foreign jurisdictions are also testing the liability of providers of online services for activities of their users and other third parties. Any court ruling that will impose liability on providers of online services for activities of their users and other third parties could harm our business.
Nevertheless, to resolve some of the current legal uncertainty, we expect the courts to interpret these laws and regulations and such rulings may be applicable to internet business activities. Such rulings could generally dampen the growth in use of the Internet and could potentially expose internet businesses to substantial liability, including significant expenses necessary to comply with applicable laws and regulations. Several U.S. federal laws that could have an impact on such business include, among others:
|·||The CAN-SPAM Act is intended to regulate spam and create criminal penalties for unmarked sexually-oriented material and emails containing fraudulent headers.|
|·||The Child’s Online Protection Act, or COPA, the Children’s Online Privacy Protection Act, or COPPA and the Prosecutorial Remedies and Other Tools to End Exploitation of Children Today Act, are intended to restrict the distribution of certain materials deemed harmful to children and impose additional restrictions on the ability of online services to collect user information from minors.|
|·||Portions of the Communications Decency Act, intended to provide statutory protections to online service providers who distribute third party content.
The Digital Millennium Copyright Act (“DMCA”), intended to reduce the liability of online service providers for listing or linking to third party Web properties that include materials that infringe copyrights of others. The DMCA is intended to limit, but does not necessarily eliminate, our liability for listing, linking, or hosting third-party content that includes materials that infringe copyrights.
A range of other laws and new interpretations of existing laws could have an impact on internet business. For example, in the area of data protection, many US states have passed laws requiring notification to users when there is a security breach for personal data, such as California’s Information Practices Act. The costs of compliance with these laws may increase in the future as a result of changes in interpretation.
Furthermore, any failure on our part to comply with these laws may subject internet companies to significant liabilities.
-Decreases in usage of a site could be caused by, among other provisions, the required use of disclaimers or other requirements before users can utilize the site services.
In addition, because internet services are accessible worldwide, certain foreign jurisdictions may claim that we are required to comply with their laws, including laws relating to labor arrangements, taxes, media and content, among others, even where we have no local entity, employees, or infrastructure.
Often, internet companies direct users to a wide variety of services that enable individuals to exchange information, conduct business and engage in various online activities on an international basis. The law relating to the liability of providers of these online services for activities of their users is currently unsettled both within the United States and abroad.
Claims may be threatened against internet companies for aiding and abetting defamation, negligence, copyright or trademark infringement, or other theories based on the nature and content of information to which they provide links or that may be posted online.
Internet companies may be subject to legal liability for specific types of online services they provide.
1. In New Zealand there is a 2 layered approach to the regulation of financial service providers and financial advisers. There is a system of registration and a system for authorisation. 2. The law requires all financial service providers, including financial advisers, who operate in there to be on a public Financial Service Providers Register (FSPR). It also requires advisers to belong to an approved dispute resolution scheme or to the reserve scheme (a scheme appointed on recommendation of the Minister to perform the functions of a default scheme). This gives consumers access to an independent dispute resolution process. Registration 3. Entities and individuals who: (a) Live or have a place of business in New Zealand; and (b) Are in the business of providing financial services (in New Zealand or overseas), must register to provide that particular financial service on the FSPR. 4. The meaning of ‘financial service’ is defined in section 5 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008. An early stage of the process will be to identify exactly what services your client wishes to provide. We will then be able to advise on the application of the relevant legislation. 5. In terms of whether individual and entity level registration is required, Regulation 6 in the new Financial Service Providers (Exemptions) Regulations 2010 deals with ‘sole adviser practices’. The NZ’s company will not have to be registered on the FSPR in its own right as a financial service provider if: (a) The advisor provides the financial adviser services (or a relevant connected service) on behalf of the company and they are the only director, or one of only two directors, and senior manager of the company; (b) The advisor is personally registered (in their individual capacity) on the FSPR. 6. Applicants must also ensure they are not disqualified from registration. Individual applicants must not be undischarged bankrupts or banned directors. They must have a record clear of fraud and other criminal offences (a criminal history check will be conducted as part of the registration process). 7. All providers must pay the appropriate fees. The initial registration is approximately NZ$420 (including GST) with an ongoing annual fee of approximately $62. Registration is online and relatively simple and your client will presumably be able to register without assistance from us. Financial Advisers 8. The Financial Advisers Act 2008 introduced minimum standards of professionalism for financial advisers and gives the Securities Commission power to regulate them. 9. The Financial Advisers Act aims to build public confidence in the professionalism and integrity of financial advisers by: (a) Requiring competence so advisers have the experience and expertise to match a person to a financial product that meets their needs and risk profile. (b) Requiring disclosure by advisers so that consumers can make informed decisions about whether to use an adviser and follow their advice. (c) Making advisers accountable for the advice they give. 10. The Financial Advisers Act covers individuals and entities who provide financial adviser services to clients. Financial adviser services included in the Act are: (a) Giving financial advice. (b) Providing an investment planning service. (c) Providing a discretionary investment management service. 11. Whether client need to be authorised depends on the following factors: (a) Whether the client’s client is retail or wholesale; (b) Whether the service to be provided is personalised or non-personalised (a class service); and (c) Which category of product your client will advise on. 12. The Financial Advisers Act focuses the requirement to be authorised on advisers who provide personalised investment advice to retail clients. 13. The category of product, i.e. category 1 or 2, is relevant for personalised services, which are services that take into account the client’s individual needs and financial situation or where a client would reasonably expect an adviser to take their particular financial situation or goals into account. 14. The clients will need to become an Authorised Financial Adviser (AFA) if you provide any of the following Financial Adviser Services to retail clients: (a) Give personalised financial advice on category 1 products including: securities, land investment products, futures contracts and investment-linked insurance contracts. Financial advice covers any recommendation or opinion about buying, selling (or refraining from buying or selling) a financial product. (b) Provide a discretionary investment management service in relation to category 1 products, i.e., your client decides which financial products to buy and/or sell on behalf of a client, e.g., your client is authorised to manage a client’s investment portfolio. (c) Provide an investment planning service, that is, if your client designs or offers to design a plan for an individual that: (i) Is based on an analysis of an individual’s current and future overall financial situation (ii) Identifies their investment goals, and (iii) Includes recommendations or opinions on how to realise those goals. 15. The requirements for authorisation and the process are fairly stringent. They require: (a) Registration with ETITO (the organisation tasked with ensuring compliance with the educational requirements) and a competence assessment and examinations, as required. (b) Evidence from the relevant educational institution or industry body of accepted alternative qualifications and designations for proof of competence. (c) The provision of testimonials. (d) Evidence of good character. (e) The preparation of an Adviser Business Statement (ABS). (f) Online application for authorisation to the FSPR. 16. The application fees are approximately NZ$1,200, with an annual fee of approximately NZ$600.
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Banco Ciudad de Buenos Aires
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Banco de Inversión y Comercio Exterior S.A. (BICE)
Banco de la Nación Argentina
Banco de la Provincia de Buenos Aires (BAPRO)
Banco de Desarrollo Productivo S.A.M.
Banco da Amazônia S.A. (BASA)
Banco de Desenvolvimento de Minas Gerais S.A. (BDMG)
Banco do Brasil S.A. (BB)
Banco do Nordeste do Brasil S.A. (BNB)
Banco Nacional de Desenvolvimento Econômico e Social (BNDES)
Banco Regional de Desenvolvimento do Extremo Sul (BRDE)
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Financiadora de Estudos e Projetos (FINEP)
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Banco del Desarrollo
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Instituto de Desarrollo Agropecuario (INDAP)
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Banco Ecuatoriano de la Vivienda (BEV)
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Corporación Financiera Nacional (CFN)
Banco de Fomento Agropecuario (BFA)
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Banco Nacional de Desarrollo Agrícola (BANADESA)
Banco Nacional de Comercio Exterior S.N.C. (BANCOMEXT)
Banco Nacional de Obras y Servicios Públicos S.N.C.(BANOBRAS)
Fideicomisos Instituidos en Relación con la Agricultura (FIRA) – Banco de México
Nacional Financiera S.N.C. (NAFIN)
Financiera Nicaragüense de Inversiones S.A. (FNI)
Fundación para la Promoción del Desarrollo Local (PRODEL)
Banco de Desarrollo Agropecuario (BDA)
Banco Hipotecario Nacional (BHN)
Banco Nacional de Fomento (BNF)
Banco Agropecuario (AGROBANCO)
Corporación Financiera de Desarrollo S.A. (COFIDE)
Banco de Desarrollo Económico para Puerto Rico (BDE)
Banco Gubernamental de Fomento para Puerto Rico (BGF)
Banco Agrícola de la República Dominicana (BAGRICOLA)
Banco de Reservas de la República Dominicana (BR)
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The Turks and Caicos Islands Investment Agency (TCInvest)
Banco de la República Oriental del Uruguay (BROU)
Corporación Nacional para el Desarrollo (CND)
Banco de Comercio Exterior (BANCOEX)
Banco de Desarrollo Económico y Social de Venezuela (BANDES)
Banco Industrial de Venezuela C.A. (BIV)
Fondo de Crédito Industrial (FONCREI)
Sociedad Nacional de Garantías Recíprocas para la Mediana y Pequeña Industria S.A. (SOGAMPI)
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New UCITS framework
The European Commission has announced that the legislative package designed to enhance the EU framework for UCITS funds has been adopted. The so-called UCITS IV detailed requirements are in the form of four acts (two Directives and two Regulations). Member States now have 12 months to implement the directives, while the regulations will apply from 1 July 2011.
These acts cover the following areas: key Investor Information, rules for the conduct of UCITS management companies, UCITS mergers and master-feeder structures, notification procedure and supervisory co-operation and common procedures for enhancing supervisory cooperation in their oversight of fund managers’ cross-border activity of fund managers.
New insurance legislation in New Zealand
The authorities in New Zealand are in the process of updating the local insurance legislation and, following a period of consultation, a draft Insurance (Prudential Supervision) Bill has been submitted to Parliament this month.
5.1 You must confirm the applicant firm has documented compliance procedures in
When assessing this application we need to be satisfied that the applicant firm has the
appropriate compliance arrangements in place to meet its regulatory obligations, both
when we authorise it and on an ongoing basis.
In preparing their compliance procedures many smaller firms will be able to use a
tailored Handbook: www.fsahandbook.info/FSA/select-handbook/tailored or a Personal
Set out below are the areas we would expect to be covered, as a minimum, in your
(a) the scope of the applicant firm’s business;
(b) client classification;
(c) complaints handling;
(d) financial crime (you will be asked for more details about this in question 5.4);
(e) training and competence;
(f) business continuity;
(g) the fit and proper criteria for approved persons;
(h) communication with clients;
(i) record keeping;
(j) notifications to the FSA;
(k) reporting requirements;
(l) scope of service provided;
(m) conflicts of interest;
(n) remuneration policies; and
(o) exclusion of liability.
As well as the subjects above, your compliance manual may need to cover the subjects
below depending on your type of business.
(a) claims handling;
(b) Chinese walls;
(c) general provisions related to distance marketing;
(d) financial promotion;
(e) rules on personal account transactions;
(f) appointed representatives;
(g) the Statement of Principles and Code of Practice for Approved Persons;
(h) Systems and controls in relation to financial crime and money laundering;
(i) the employees’ responsibilities under the money laundering regime, including:
(i) internal reporting duties;
(ii) customer identification procedures;
(iii) the use and availability of the know your business information; and
(j) client assets.
(NOTES) 5 Compliance arrangements
New EU compliance regimes for financial firms across Europe
The European Commission has recently announced a series of wide-ranging consumer protection proposals aimed at boosting retail investors’ confidence in financial services.
Two of these proposals represent upgrades of existing arrangements, the first of which will ensure that all banks throughout the EU provide a uniform level of protection to depositors, with national Deposit Guarantee Schemes upgraded to €100,000 per account holder by the end of this year. The second proposal will benefit investors in mutual funds who will see the minimum level of compensation per investor increase from €20,000 to €50,000. In both cases these increased compensation amounts will subsequently be supported by faster payouts, better information to account holders, more robust financing of the schemes and, for investment business, wider protection covering, for example, third party custodian defaults.
But the most radical changes will come in the insurance sector where, at present, only 12 out of 27 EU countries have any form of insurance guarantee or compensation scheme in place.
Despite all the work going into it, the European Commission believes that Solvency II is unlikely to prevent the failure of insurance companies in the future, so it is proposing to introduce the Insurance Guarantee Scheme (IGS) Directive to provide a minimum base level of protection in all EU countries.
It is proposed that the IGS will be based on the ‘home country’ principle where each country’s insurance guarantee scheme will cover not only policies issued by domestic insurers, including freedom of services into other EU countries, but also those sold by branches of domestic insurers established in other EU Member States. At present France and Germany apply the ‘home country’ approach but the UK Financial Services Compensation Scheme operates largely on the ‘host country’ principle implying a significant change for the key UK cross-border life market at some point over the next two years.
The IGS initiative is logical and puts the life sector on a similar pan-European level playing field with deposits and funds. However, in contrast to the way the deposit and investment compensation schemes are funded, it seems strange that the Commission has proposed that the costs of funding insurance guarantee schemes should be borne by overt additional premiums paid by policyholders.
Although it can be argued that the end client ultimately bears the costs of any compensation or compliance regime, this lack of consistency is unlikely to promote consumer confidence in the financial services sector as whole and contradicts the Commission’s own PRIPs initiative to create consistency in approach for all ‘substitute’ retail investment products.
Hong Kong and the insurance regulator consultation paper
Hong Kong’s Financial Services and Treasury Bureau has issued a consultation paper on the proposed establishment of an Independent Insurance Authority this month.
The three-month public consultation will gather views from industry and the public on the suggested transformation of the current system, under which the IA is the only financial services regulator still operating as a government department, and where insurance intermediaries essentially operate within a self-regulated environment. Membership of one of the jurisdictions’ non-statutory IFA trade bodies is currently the only stipulation for conducting business there.