FSR GPS: Misleading Or Deceptive Conduct – A Disclaimer Antidote?

In this edition of the FSR GPS, we explore key principles for financial services businesses to consider when considering the use of a disclaimer to mitigate false, misleading or deceptive conduct.

As noted in our previous article about where an unintentional error may not constitute misleading or deceptive conduct, the key test for misleading or deceptive conduct is whether the conduct, viewed as a whole, has a sufficient tendency (i.e. a real and not remote probability) to lead the relevant person into error.

Recent cases have given room for disclaimers to be taken into consideration in applying this test.

This is a very important development for those in the financial services sector, as it potentially provides an important counterargument to inaccurate (particularly inadvertently inaccurate) material being misleading or deceptive.