Marketing Your Lending Capabilities without Breaking the Rules

Overview

Commercial lenders operate in sophisticated and dynamic markets and need to keep on top of ways to showcase their expertise, capabilities and product range. Whether it be marketing your brand and lending capabilities or issuing marketing materials relating to a specific product or service, regulators globally have shown themselves to be alive to aggressive or non-compliant marketing practices. So, in an era of increased scrutiny and evolving digitalised practices, how can a lender be clear on their legal and regulatory obligations when originating deals and creating/distributing their marketing materials?

In the following article we look at some considerations that shape deal origination practices and the form and content of marketing communications and consider some proposed changes coming down the track that lenders will need to keep a close eye on to ensure that their internal policies and procedures remain compliant.

Our new service, Rulefinder Cross-Border Lending, takes the complexity out of compliance by providing practical analysis of your obligations, including in relation to brand marketing activities and distribution of marketing materials, across key jurisdictions in a user-friendly way. Key features of the service include a useful comparison tool allowing you to compare across jurisdictions and regions, daily monitoring/email alerts and template disclaimer language. 

Conducting brand awareness vs. active marketing

Deal origination often entails the conduct of general marketing activities (such as general awareness-raising of the lender’s brand and/or product and service lines, as well as attending/speaking at events). These types of activities will not typically trigger a licensing requirement, so long as there is no marketing of specific products/services but activities should be assessed on a case-by-case basis. Some jurisdictions, such as South Africa, can be particularly sensitive to general marketing activities that imply that an entity is authorised under local laws. One specific point that should be considered is the potential impact that conducting general marketing activities in a particular jurisdiction has on a lender’s ability to subsequently rely on reverse solicitation. For example, in Italy, a cross-border lender performing general marketing in Italy would be unable to later rely on any reverse enquiry and as such our local counsel in Italy recommend that the lender only perform general marketing activities in Italy, especially where addressed to the public, where it is (or is considering becoming) duly licensed/authorised or passported to provide regulated lending activities in Italy.

While it may be possible to conduct initial general marketing activities in many jurisdictions without triggering licensing restrictions, active marketing activities in relation to specific products or services are more likely treated in the same way as provision activities and as such, consideration of the licensing framework for lending activities and any potential exemptions/exclusions is required. Some jurisdictions such as ADGM and the DIFC also have specific restrictions on financial promotion activity unless it is structured pursuant to one of the available financial promotion exemptions.

It is also necessary to consider if/how this analysis may change depending on the mode of marketing.  For example, in some jurisdictions, the analysis can hinge on whether the marketing activities take place remotely or onshore. Saudi Arabia presents an interesting example, where current tolerated practice dictates that no marketing activities by unlicensed foreign lenders should be undertaken onshore.

Specific requirements to consider in relation to marketing materials

Regulations which govern marketing practices and the form and content of marketing communications often have the same high-level principles at their core, regardless of the jurisdiction to which they apply, such as the requirement to be clear, accurate, concise, fair and not misleading. The level of sophistication of the intended recipient will then usually dictate the applicable requirements as to the content of marketing communications and any disclaimers that may be required.

Many jurisdictions have their own set of good marketing practices, i.e. requirements relating to good business conduct and prohibitions against misleading marketing and the use of unfair commercial terms, which can extend to apply to entities marketing into the jurisdiction on a cross-border basis.  Although they tend to be focused on the protection of consumers, consideration should be given as to whether any provisions apply to non-consumers too.  In Denmark, unsolicited marketing to all types of borrowers via e-mail, direct messages on social media or via use of an automatic calling system or fax is prohibited, unless prior consent has been obtained. In Ireland, the Consumer Protection Code 2012 (a revised version of which is to come into effect in March 2026) applies to regulated entities (which includes a lender that that has exercised its EEA passport on a freedom of services basis) when providing credit to consumers (which can include certain businesses) in Ireland and imposes several obligations on a lender including, to act honestly, fairly and professionally in the best interests of the consumer and with due skill, care and diligence.

In certain jurisdictions, it is also necessary to consider specific requirements in relation to the form and content of materials used in marketing/advertising activities. In Spain, Circular 4/2020 sets out specific rules for advertising banking products and services which are relevant to licensed third-country entities acting on a cross-border basis. These rules are prescriptive as to presentation, format and content. Specific obligations must also be considered when advertising in digital media and through social networks. The DIFC is another jurisdiction where it is necessary to consider specific form and content requirements that apply when conducting financial promotion activity pursuant to one of the available exemptions/exclusions.

Jurisdiction developments on content requirements

In recent years, a number of jurisdictions have been taking steps to review existing frameworks and develop more robust standards, either as part of a wider review of advertising rules or, more specifically, on the content of marketing communications. Given the increased use of digital communication methods, it is no surprise that we have seen a heightened regulator focus on how the core principles can be upheld in this changing regulatory landscape.

In May 2025, Singapore's Monetary Authority (MAS) released a consultation paper proposing to tighten its financial advertising regulations to promote greater transparency and fairness in the marketing of financial products and services.  Under current rules, certain advertisements, especially those aimed at sophisticated investor classes or relating to specific activities such as foreign exchange advisory services, are excluded from compliance with full advertising standards but MAS is proposing to remove exemptions that apply to advertisements targeted at accredited and institutional investors and to bring advertisements that promote financial services rather than specific investment products into scope.  The proposed changes are part of MAS’ ongoing efforts to mitigate the risks of information asymmetry and misleading communications in the financial sector and ensure that all investors, regardless of their level of sophistication, should be given reliable and accessible information to make informed decisions. If implemented, advertisements targeting accredited or institutional investors would need to meet the same advertising standards as retail-focused promotions. These proposals also build on earlier proposals from an April 2023 consultation on enhancing safeguards for digital prospecting.

In January 2025, France’s AMF stated one of its supervisory priorities for 2025 is the marketing of financial products and financial investment advice will be a priority in 2025 particularly in relation to the online offering of complex or innovative products. At aosphere we will be monitoring to see if any initiatives are announced in connection with this priority and will update our subscribers via our alerts service.

What if the marketing is carried out by a "bank"?

It is always worth taking time to consider if a jurisdiction has a specific restriction on activities being conducted by firms that have the word “bank” (or similar) in their name. For example, in Australia a person may not use certain restricted words (e.g. “bank”, “banking”, “credit union”, “credit society” etc.) or expressions (or a word or expression of like meaning) in relation to the financial business it carries on unless it has APRA’s consent. While APRA will not generally provide exemptions from this requirement for overseas banks operating in Australia from offshore offices there are some specific criteria that can be followed so as to fall within a “relief” that has been issued by APRA. The Netherlands and Ireland are also examples of jurisdictions where there are restrictions on the activities of firms with bank in their name and care is required to consider these restrictions and structure activities accordingly.

Checklist

A simple checklist for marketing materials can be helpful to keep on top of content requirements.  In our Cross-Border Lending service we ask counsel to provide details of the restrictions that apply to various methods of marketing, including the distribution of written materials to borrowers in their jurisdiction, both in person and via remote means. Our service also provides information on language requirements for marketing materials and recommended or required sample disclaimer language.

• Do the marketing materials need to be in a particular language?

• Are there specific pieces of information that need to be included where materials are distributed in this jurisdiction?

• Might the regulator request to review the marketing documents?

• Do any disclaimers need to be included?

Final thoughts

Lenders, of all types, should be conducting regular exercises to identify all marketing materials that are subject to rules or guidance and apply necessary changes to ensure compliance with requirements that apply both at a regional and local level. Although the core principles on form and content of marketing communications are often aligned, specific requirements still vary from jurisdiction to jurisdiction so analysis should be conducted on a case-by-case basis and failure to comply can result in fines and reputational damage.