ENF 2.13 Publicity

The FSA will not normally make public the fact that it is or is not investigating a particular matter, or any of the findings or conclusions of an investigation.

Paragraphs ENF 2.13.3 G to ENF 2.13.6 G deal with exceptional circumstances in which the FSA may make a public announcement that it is or is not investigating a particular matter.

Where the matter in question has occurred in the context of a takeover bid, and the following circumstances apply, the FSA may make a public announcement that it is not investigating, and does not propose to investigate, the matter. Those circumstances are where the FSA:

1. (1)

   has not appointed, and does not propose to appoint, investigators; and

2. (2)

   considers (following discussion with the Takeover Panel) that such an announcement is appropriate in the interests of preventing or eliminating public uncertainty, speculation or rumour.

Where it is investigating any matter, the FSA will, in exceptional circumstances, make a public announcement that it is doing so if it considers such an announcement is desirable to:

1. (1)

   maintain public confidence in the financial system; or

2. (2)

   protect consumers; or

3. (3)

   prevent widespread malpractice; or

4. (4)

   help the investigation itself, for example by bringing forward witnesses.

In deciding whether to make an announcement, the FSA will consider the potential prejudice that it believes may be caused to any persons who are, or who are likely to be, a subject of the investigation.

The exceptional circumstances referred to in ENF 2.13.4 G may arise where the matters under investigation have become the subject of public concern, speculation or rumour. In this case it may be desirable for the FSA to make public the fact of its investigation in order to allay concern, or contain the speculation or rumour. Where the matter in question relates to a takeover bid, the FSA will discuss any announcement beforehand with the Takeover Panel. Any announcement will be subject to the restriction on disclosure of confidential information in section 348 of the Act (Restrictions on disclosure of confidential information by FSA etc).

There will also be cases where publicity is unavoidable. For example, investigations into suspected criminal offences may often lead the FSA into making enquiries amongst the general public which might attract publicity.

The FSA will not normally publish details of the information found or conclusions reached during its investigations. In many cases, statutory restrictions on the disclosure of information obtained by the FSA in the course of exercising its functions are likely to prevent publication (see section 348 of the Act). In exceptional circumstances, and where it is not prevented from doing so, the FSA may publish details. Circumstances in which it may do so include those where the fact that the FSA is investigating has been made public, by the FSA or otherwise, and the FSA subsequently concludes that the concerns that prompted the investigation were unwarranted. This is particularly so if the firm under investigation wishes the FSA to clarify the matter.

Section 391 of the Act (Publication) deals with publication of regulatory action resulting in final notices and effective supervisory notices (see DEC).

1. (1)

   Under section 391(4) the FSA must publish such information about the matter to which a final notice relates as it considers appropriate.

2. (2)

   Similarly under section 391(5), where a supervisory notice takes effect the FSA must publish such information about the matter to which the notice relates as it considers appropriate.

3. (3)

   However, under section 391(6) the FSA may not publish information under section 391 if publication of it would, in its opinion, be unfair to the person with respect to whom the action was taken or prejudicial to the interest of consumers.

Where the final notice relates to behaviour in the context of a takeover bid, and the FSA believes that publicity may affect the timetable or outcome of that bid, the FSA will consult the Takeover Panel and will give due weight to the Panel's views.

ENF 9.10 (Publication) sets out the FSA's policy on publishing details of applications to court for restitution or for the use of its administrative power to require restitution. The FSA considers that it is generally appropriate to publish details of successful applications to court or of the exercise of its administrative powers to require restitution. However, in certain circumstances it may decide not to publish, for example, if this could damage market confidence or undermine market integrity in a way that could be damaging to the interests of consumers. Where the relevant behaviour has occurred in the context of a takeover bid, and the FSA believes that publicity may affect the timetable or outcome of that bid, the FSA will consult the Takeover Panel and will give due weight to the Takeover Panel's views.

The FSA will also normally publish the outcome of other civil actions, such as the obtaining of injunctions prohibiting further illegal activity, and of public hearings in criminal prosecutions. Again, where the relevant behaviour has occurred in the context of a takeover bid, and the FSA is of the opinion that publicity may materially affect the timetable or outcome of that bid, the FSA will consult the Takeover Panel and will give due weight to the Takeover Panel's views.