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The GDPR and UK Financial Advisers: Consent, Erasure & Accuracy

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General Data Protection Regulation (GDPR) Data Subject Consent is essentially targeted at giving data subjects more control over use of their data – for example in connection with marketing activities, which (in the absence of consent) could not otherwise be legally warranted by a data controller.

Giving a data subject the option to give or refuse consent protects individuals from unwanted and unjustified communication from service providers and is highly aimed at the business-to-consumer world. It will affect advisers given that it will dictate how they can approach new business opportunities from new or existing clients.

If an email, SMS message or phone call is sent or made to an individual and that individual follows it up with a request to understand where they gave permission for such correspondence, then it is the obligation of the firm to be able to prove the individual in question has indeed consented to receiving such correspondence. If the firm cannot provide this evidence, then this constitutes a breach.

GDPR and financial advisers: The Right Of Erasuregdpr uk financial services fca
While this does have an effect on correspondence with clients, it only affects certain types. The other relevant condition for advisers to be aware of here is the ‘necessary for the performance of the contract’ condition.

A client may well opt out of marketing communications, such as a firm’s newsletter, but the firm would still have to send them correspondence on things like portfolio updates and contracts as such correspondence is essential for the performance of the contract between the data subject and the firm. What would the data subject be expecting to receive from the firm?

The opt-in process for obtaining valid consent under the incoming General Data Protection Regulation (GDPR) will be quite onerous for firms marketing to individuals. It is therefore a good idea to get into started early and consider how the firm will market to prospects post-GDPR.
You can obtain a full GDPR presentation along with two question packs at https://goo.gl/n5JsXy

GDPR and financial advisers: Data Accuracy
Simple steps could be taken now, for instance, updating the privacy policy to make sure that the firm has made some inroads towards compliance. In marketing materials that are submitted now, it deserves including the double “opt-in” option in such correspondence. Provided the guidelines for obtaining valid consent under the GDPR are met, if people opt in now, then the firm will have the ability to correspond with them after 25 May 2018.

If consent from an individual is sought, they must respond to be considered to have opted in. Their silence or inaction are not indicative of consent. Similarly, where someone has opted into correspondence at an event, in person, the firm should consider a mechanism to follow up to gain their unequivocal written consent as a form of best practice.

This applies to of electronic opt-ins too and is called ‘double opt-in’. This is to avoid circumstances whereby an individual’s details may have been shared under false pretences, or by mistake. A face-to-face meeting does not constitute an explicit response. Compliance Consultant (http://www.complianceconsultant) can help you through this.

fca operational risk management rules mapping handbookConcerns Raised
How would you know if someone had given consent to be marketed to and, beyond that, how are they going to get clients to say yes in the future.

The topic of consent, is one of the few black and white areas of GDPR with draft guidance. If the person being marketed to – that is to say, being contacted outside the bounds of the performance of a contract – has not explicitly and unambiguously agreed to be contacted, then this would constitute a breach of the GDPR.

Clients can not be deceived at all. Having a pre-ticked box below an online form, for example, does not constitute consent. The user must be made aware of what their contact details will be used for, how their data will be processed and have the opportunity to make their own choice about whether or not they receive communication from the firm.

When it comes to legacy clients, where a firm may wish to contact them to notify them about new products and services, then it was agreed the firm would will need to seek their permission to do so.

This will have to be done in advance of GDPR entering force, since any correspondence after 25 May 2018 in this fashion will constitute a breach, since those individuals will not have consented to be contacted at all. If firms have not begun to seek consent – or fresh consent in order to meet the higher threshold under the GDPR – from existing contacts within their database, then they should seek to do so now.

If these individuals do not respond to requests, it is to be believed they do not wish to be contacted. It is worth demonstrating the benefits they will lose out on from desisting so, like special deals, new investment opportunities, industry news etc.

Beyond receiving their unambiguous consent to be marketed to, a firm also needs to keep it very easy for an individual to change their communication selections – or in other word, withdrawing consent. This is just like offering an unsubscribe option on emails – something firms should currently be doing.

There is often discussion whether it would be acceptable to include a small amount of marketing in documents that are distributed to individuals as part of the performance of the contract. This could, for example, be used as a vehicle to update them of new investment opportunities. The answer is that yes it can, but the marketing must, however, be relevant to the overarching reason of the letter and should not detract from that as the main message.smr smcr fca aper

Data subject consent: Key actions and considerations

As consent from individuals must be unambiguous and they must also have the opportunity to redefine their communication preferences at any time. How will you achieve this?

How will you ensure the person competing the form/questionnaire/application is over the minimum age?

Even if the client “Opts-Out” certain correspondence may be necessary for the performance of the contract with the individual concerned, in which case consent would not be required; how will you explain this?

The fall back position is simple; If there is ANY uncertainty about whether a firm has consent from an individual, then it should consider that it does not have consent.

Data subject consent: Questions for the all industry advisers

Have you started gathering consent from clients and prospects and if so, how? How is it recorded?

Does this data form part of Senior Management MI Packs?

How and when are you going to seek consent from legacy clients?

Do you currently capture consent and, if so, how would yo demonstrate this?

 

Compliance Consultant can assist you in all your GDPR preparation and can work with most websites, back office systems and financial promotion strategies. Contact us now on 0203 815 7939

 

Specialist Regulatory Compliance Consultancy

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Small Payment Institutions & FCA Authorisation Applications

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What are Payment Services Activities?

Payment services activities include the following:

  • Money remittance businesses, commonly referred as money transfer.
  • Mobile network operators, offering payment services.
  • Credit card issuers, such as prepaid cards.
  • Merchant acquiring businesses

Can I passport (operate) across the EU with my Small Payment Institution (SPI) licence?
You can not passport into other European countries with a SPI licence. If you wish to passport or operate across the EU (EEA region), you must apply for an authorised payment institution (API) licence.

What is a payment service?
Below is a list of examples of payment services for which you are likely to require authorisation (licencing) by the regulator:

  • Enabling customers to pay cash into a payment account over the counter and through an ATM.
  • Enabling customers to withdraw their cash from payment accounts I.e. an ATM.
  • Enabling customers to transfer money from one user account to another and to other people.
  • Enabling customers to setup direct debits to pay their bills regularly.
  • Enabling customers to transfer electronic or e-money.
  • Enabling customers to process cash transfers, such as standing orders, BACS or CHAPS payments.
  • Enabling customers to use overdraft facilities.
  • Enabling people to transfer money to others.
  • Enabling customers to make payments from smart phones, such an iPhone

Our Success Formula 
When we discuss your requirements, we will assess your business model, directors and senior management, their experience and suitability and your governance (risk & compliance), operations, structure, business model and viability, to ensure that you meet the FCA requirements. Following our assessment, we will provide you with an assessment on application strength, before we take on your application

.
SPI licence application – regulator’s requirements.

  • Directors and managers of the firm must be of good repute with appropriate skills to provide payment services.
  • Projected average monthly payment transactions must not exceed EUR3m (₤ 2.6 m).
  • Managers must not have been convicted of money laundering, terrorist financing or other financial crimes.
  • Your head office and registered office (or place of residence for natural persons) must be in the UK.
  • You must comply with the Money Laundering Regulations 2017.
  • If the applicant is a partnership, an unincorporated association or a corporation, anyone having a qualifying holding must be fit and proper for the sound and prudent conduct of a small PI, and
  • If the applicant is a corporation with close links to another person, the links mustn’t be likely to prevent the effective supervision of the business (if the link’s outside of the European Economic Area (EEA), foreign laws must not prevent the regulator’s effective supervision of your business)

API or SPI licence?
The UK regulator has a two tier structure for payment businesses, namely, Small Payment Institutions and Authorised Payment Institutions. The way to determine which option your firm falls under is to determine your average monthly turnover in transactions.

If your monthly turnover transactions are under 3m EUR (₤ 2.6M) you can become an small payment institution (SPI). If your monthly transaction amount exceeds this then you will need to apply as an authorised payment institution (API)

Furthermore, in the UK, you will be required to register with HMRC for money laundering and fit and proper purposes. We can help you with the HMRC registration

Segmented and Separately Auditable Bank account (Known as a Safeguarding Account)
Payment remittance businesses are required to protect or safeguard their customer’s money.

Our industry experience and relationships with financial institutions means that we can assist you in arranging your bank account

So how long does it all take?
We usually require up to two weeks to prepare and submit your application, but typically 5-7 working days.

The regulatory process and approval for small payment institutions (SPI) applications is up to 3 months, although the average time is often much less.

In a hurry? We Offer a Priority Fast-track Service.
If you are in a hurry or have a deadline to meet, please contact us about our Fast track service. Here, we can complete and submit your application within 72 working hours.

Our success rate.
We have a 100% success rate for SPI licence applications

Our fees and next step.
Contact us on +44 (0) 203 815 7939 or email us on info@complianceconsultant.org. We will then discuss your project and provide you with costing. Once you are happy and we are confident that you have a strong chance of meeting the regulatory requirements of being approved, we will then arrange a telephone call with you to go over your application. Our team of experts will also be briefed on your project and they will then begin working on your application.

Alternatively – you can purchase an Application Pack and the upgrades at our online portal HERE.

 

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From FCA Authorisations to SMCR And Beyond – We Do It All

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3 Facts You Need to Know About Successful FCA Authorisation

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Why Compliance Consultant Is The Top Among FCA Authorisation Consultants



FCA Authorisation And Why You Need To Get It Right

FCA Authorisation are available from many consultancies throughout the UK, but there is only one company with the experience, qualifications and resource to match your needs.

Many compliance consultancies will quote you a base price, but then add in extras like the policies and procedures you will need and if you ask any questions throughout the process, the clock starts ticking and you are charged as much as £300 per hour (or more).

Compliance Consultant is different. We provide a full preparation service with you and as part of that will provide you with most templated policies you may need (manuals and procedures are extra). We provide a full Q&A service with no extra charge and, for small firms, will only bill you for the final payment when you receive the go ahead from the regulator.

We can also complete a draft Business Plan – ask for details.

Larger firms and challenger banks are POA.

If you want a surprising journey, call others. If you want a fully inclusive, professional and swift service, call us on 0203 815 7939 or email info@complianceconsultant.org.

 

 

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Affiliate Program

Welcome to the Compliance Consultant

(IYC Cubed Limited) Affiliate Program.

You can earn 50% commissions on the range of products provided by us through E-Junkie

Latest NEWS: GDPR Presentation Pack see details HERE

Affiliate members are already earning huge profits on our products such as our “Compliance Manager’s Guidebook & Reference” (UK Sales Only) as well our ever popular “Compliance Manual Template”

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For UK Financial Services Products, look for the “UKFS” pre-listing in the affiliate dashboard.

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Money Laundering Regulations 2017 Changes

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As you know, the 26 June 2017 saw the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (“MLR 2017”) came into force, having been made, laid before Parliament and approved all on 22 June 2017.

Regulated businesses are now faced with the inestimable task of ensuring both their firm-wide and client-specific risk assessment processes and procedures are sufficiently robust to comply with MLR 2017 – after the commencement date.

If you use an external Compliance Service, they may well have provided you with an update on the legislation before it came into force, however, anyone who used the original draft in the belief that they would be the final rules will have failed to identify key points that are required by firms, that have been changed or were introduced in the final legislation.

Questions You Need To Ask

1. Have we reviewed the definitions and procedures in accordance with the MLD4?
2. Have we updated the CDD/EDD/SDD and Beneficial owner sections?
3. Have we trained our staff on the changes?
4. Is our policy up to date?
5. Is our policy approved by the board?
6. Would our AML/KYC/FC preparations or current arrangements stand up to independent external scrutiny?
7. Do you need to review the ‘state of play’ within your firm?

If the answer to ANY of these questions is “NO”You Need Our Help.

After a comparative analysis of the draft Regulations and the final MLR 2017 from the draft published by HM Treasury in April 2017 there are key differences which we have identified below.

Risk Assessment & Review
At your business level, two risk assessments are required. A business-wide risk assessment of money laundering and terrorist financing geographical features, transactions, products and delivery channels, as well as a specific risk inquiry prior to the commencement of each client relationship and, following a consideration of customer type, indeed, during the course of the relationship.

Governance Requirement
Regulation 19 of the Act shows a positive duty on regulated businesses to “regularly review and update” such policies and controls has been inserted in Regulation 19( 1)(b). Businesses will also be required to maintain a written record of all changes to AML policies, controls and procedures made because of a review plus all “steps taken to communicate” the changes to staff. This means that your version control is now of paramount importance. A similar requirement applies in Regulation 20 to parent companies in the UK, falling within the scope of a “relevant” (regulated) person.

Internal Controls
Alongside the requirement to implement and regularly review AML policies and procedures, is a requirement in Regulation 21 that regulated persons implement internal controls applicable to employees engaging with compliance matters. Previously, the draft Regulations required a firm to “carry out screening of relevant employees and agents” at regular intervals. “Screening” relates to assessing the skills, knowledge and expertise of a particular individual. The final version of the Regulations, however, has slightly lessened the compliance burden in one respect by dropping the reference to “agents” in Regulation 21.

Training records
A duty to maintain written records of training provided to relevant employees, which practically would include all fee earners and those in the Compliance function, also appears in Regulation 24. No such duty featured in this April’s draft Regulations.

Special Offers For Limited Number And/Or Date
If you want to get an up-to-date AML & CTF Manual, please click on this link (http://aml-compliance-manual-ofac-sanctions-ctf.co.uk) and use the code “CCMLD4” in the payment box.

Hurry because this only valid for the first 25!

If you want to take advantage of our policy checking offer, go to our special offer HERE but hurry, this is only on sale until the 31st August!

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You might also be interested in;

How Can You Adapt To The Growing Rate Of Regulatory Change With Confidence?

Regulatory Rules Mapping

Getting FCA Authorisation

 

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Corporate Financial Services Regulatory Compliance Enquiry Form

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UK Regulatory Compliance Consultancy Services

Compliance Consultancy

Compliance Consultant is one of the UK’s leading FCA compliance consultancies. We help financial services firms achieve FCA & PRA Authorisation, Manage their Regulatory Obligations, Perform Compliance Audits and Past Business Reviews, SYSC Assessments and Empower their staff with bespoke and Direct Compliance Training.

Our compliance consultants are subject-matter experts and assist clients from a broad range of areas, these include, but are not limited to;

 

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Legacy Regulatory & Risk Issues That Compromise Your Strategy & Costs You £,000’s … and how to fix them

Business is Hard Enough Today…. So

Why Stick Your Head In The Sand?

 

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