“Not financial advice” is not a compliance concept: Why finfluencer risk starts before the post goes live
BaFin’s recent statement on finfluencers is being read mainly as a warning about advertising, conflicts of interest and consumer protection. Those issues matter. But from a market-abuse perspective, the more interesting question arises one step earlier:
What information did the creator receive before publication?
That question can fundamentally change the legal analysis. Imagine a crypto project is preparing a major announcement. A creator, ambassador or advisor receives an advance briefing so that content can be prepared and published at the right moment. The creator may already hold the relevant token. Others involved in the campaign may hold it as well. Some may know not only what will be announced, but exactly when the announcement will go public.
At that point, this is no longer merely a question of whether the eventual post carries an adequate advertising disclosure. A label such as #ad, “paid partnership” or “not financial advice” does not answer whether the information received beforehand constituted inside information, whether the recipient was permitted to trade, whether they passed the information on to somebody else, or whether they encouraged another person to trade.
Under MiCAR’s market-abuse regime, these questions can engage rules on insider dealing, recommending or inducing another person to engage in insider dealing, and unlawful disclosure of inside information. BaFin also expressly highlights a related but separate risk: promoting securities or crypto-assets without sufficiently disclosing an existing conflict of interest may, depending on the circumstances, amount to market manipulation.
These issues should not be collapsed into a single “finfluencer compliance” bucket. They concern different conduct at different stages.
Compliance begins before the content is created
For creators and the companies engaging them, three questions should therefore come before the wording of any disclosure:
Compensation: Who is giving the creator what, and for what purpose?
This is broader than cash remuneration. Tokens, free allocations, options, participation rights, referral benefits or other economic advantages may all be relevant when assessing the creator’s incentives and the disclosures that should accompany a recommendation or promotion.
Position: Does the creator already have an economic interest in the asset?
A creator who owns the asset they are discussing is in a different position from somebody without an exposure. That does not automatically prohibit the communication, but it may affect the required disclosure and the wider market-abuse analysis.
Information: Does the creator know something the market does not yet know?
This is the question that deserves much more attention. If a creator receives non-public information that is sufficiently precise and price-sensitive, the legal issue can arise before the first draft of the post has even been written. Adding a disclaimer later does not cure what may have happened beforehand.
Social-media campaigns are information flows
The practical consequence is that companies should stop treating influencer campaigns solely as a marketing workflow. Where potentially price-sensitive information is involved, the process should also answer:
Who receives the information?
Why does that person need it?
At what point is it provided?
Is the recipient permitted to trade while holding it?
May it be shared with colleagues, agencies or production teams?
When may the creator publish?
How are these decisions and instructions documented?
This is particularly important for creators, ambassadors, advisors, agencies and other external partners. They often sit outside the compliance structures that companies use for employees, directors or professional advisers, although they may receive exactly the same sensitive information.
The informal nature of social-media collaboration can make this worse. A briefing may happen in a WhatsApp group. A launch date may be mentioned during a call. Draft materials may circulate through an agency. A creator may share information with an editor or production assistant without anybody considering whether the information is still confidential.
From a market-abuse perspective, however, the communication channel is largely beside the point. What matters is the information and what people do with it.
Disclosure still matters - but it comes later
Once publication is permitted, creators should disclose compensation and conflicts clearly enough for their audience to understand the relationship behind the content. “Not financial advice” is generally not a substitute for telling the audience that the creator was paid, received tokens or holds the asset being promoted.
This is also an area where regulators could help enormously through practical standardisation. BaFin has announced that it will invite selected finfluencers to Frankfurt for its first “Finfluencer Talk” in October. That could be an excellent opportunity to move from abstract expectations to tools that people can actually use.
A small set of standardised disclosure formulations for typical cases would already make a significant difference. For example:
Paid campaign:“Paid collaboration with [project/company]. I receive remuneration for this content.”
Token compensation:“I received [tokens/assets] from [project/company] in connection with this collaboration.”
Own position:“I currently hold [asset/token] and therefore have a financial interest in its price.”
Combined case:“This is a paid collaboration with [project/company]. I have received [cash/tokens/other benefit] and currently hold [asset/token].”
The precise wording will always depend on the applicable facts and legal framework. But standardised building blocks would make transparent disclosure easier, more consistent and more understandable for users.
The larger lesson
The most useful takeaway from BaFin’s intervention is therefore that social media has become part of financial-market communications infrastructure. If projects, issuers and crypto businesses use creators as part of their communications strategy, those creators also become part of the information chain surrounding potentially market-sensitive events.
And once that happens, compliance has to begin when the information leaves the core team and not with the final Instagram caption.
If social media is part of the disclosure and communications strategy, it also needs to be part of the market-abuse controls.
(Text and image created with AI assistance, reviewed, edited, and approved by the human author)
