Overview
As set out in our Initial Observations on the Central Bank of Ireland's Consumer Protection Code Consultation Paper, the Central Bank of Ireland (the "Central Bank") has proposed a revised structure for the Consumer Protection Code (the "CPC") under CP158 - Consultation Paper on the Consumer Protection Code ("CP158") comprising:
- The Central Bank Reform Act 2010 (Section 17A) (Standards for Business) Regulations, (the "Standards for Business Regulations");
- he Central Bank (Supervision and Enforcement) Act 2013 (Section 48) (Conduct of Business Regulations) (the "Conduct of Business Regulations");
- The Supporting Guidance on Securing Customers' Interests; and
- The Supporting Guidance on Protecting Consumers in Vulnerable Circumstances; (together the "Revised Code").
Our most recent insight discussed the new Standards for Business - Securing Customers Interests, which regulated financial service providers ("RFSPs") must adhere to in their dealings with consumers in Ireland (actual and potential).
This insight will focus on the new Standard for Business relating to Financial Abuse (frauds and scams).
The Central Bank believes that RFSPs have a responsibility to work collectively to ensure that the financial system is resilient and responsive to the threat of frauds and scams. The Standard for Business Regulations therefore propose a new standard for business which aims to ensure that RFSPs are taking the necessary steps to protect the system and their customers from financial abuse.
Scope
This new Standard for Business applies to all RFSPs, other than those providing MiFID services and crowdfunding services (for which there are equivalent regimes in EU legislation) and credit unions ("Excluded Firms"), in respect of both current and potential customers. The Conduct of Business Regulations, set out additional obligations on RFSPs which aim to prevent frauds and scams occurring and provide additional protections for Consumers in Vulnerable Circumstances. The new Standard for Business to protect customers against financial abuse is intrinsically linked to the specific obligations on RFSPs when dealing with Consumers in Vulnerable Circumstances. These obligations will be considered in further detail in a later insight on Consumers in Vulnerable Circumstances.
Financial Abuse - New Standard for Business
The Central Bank is seeking to modernise the CPC and given the prevalence of frauds and scams, a new Standard for Business will be introduced, aimed at the protection of customers against financial abuse through frauds and scams. This update is in line with the G20/OECD High-Level Principles on Financial Consumer Protection which seek to ensure that information, control and protection mechanisms are appropriately developed and implemented by oversight authorities and financial services providers and with a high degree of certainty protect consumers' deposits, savings, and other similar financial assets, including against fraud, scams, misappropriation or other misuses. . The Central Bank notes that RFSPs have a responsibility to work collectively to ensure that the system is resilient and responsive to the ever-evolving threat of frauds and scams, and the continuing problems associated with elder financial abuse.
The new Standard for Business requires an RFSP to control and manage its affairs and systems to counter the risks to customers of financial abuse. Certain RFSPs will already be subject to rules seeking to prevent fraud, for example, under payment services legislation, certain payment service providers are subject to strong-customerauthentification rules. RFSPs will also have obligations arising under anti-money-laundering legislation, for example, to identify and report suspicious transactions which could have a fraudulent element. This new Standard for Business seeks to complement these existing rules, requiring firms to safeguard against frauds and scams by adequately controlling and managing their affairs and systems. RFSPs will therefore be required to take a holistic view of their products and business with a view to preventing financial abuse.
New Definition
A new definition of 'financial abuse' is proposed to explain the circumstances that the new Standard for Business will apply to. Financial Abuse will mean:
- the wrongful or unauthorised taking, withholding, appropriation, or use of a customer's money, assets or property;
- any act or omission by a person, including through the use of a power of attorney, guardianship, or any other authority regarding a customer, to –
(i) obtain control, through deception, intimidation or undue influence, over the customer's money, assets or property, or
(ii) wrongfully interfere with or deny the customer's ownership, use, benefit or possession of the customer's money, assets or property
Supporting Standards
The supporting standards aim to provide greater clarity and outline in further detail the obligations on RFSPs to mitigate the risk to customers of financial abuse, ensuring that RFSPs control and manage their affairs and systems to counter the risks to customers of financial abuse by:
(i) Putting reasonable systems and controls in place for the provision of their financial services, to mitigate the risk to customers of financial abuse;
(ii) Ongoing Monitoring of trends in financial abuse (relevant to customers or the sector) and in particular potential vulnerabilities in the customer process and distribution channels;
(iii) Ensuring appropriate escalation processes are in place where there is an increased risk to customers of financial abuse; and
(iv) Communicating clearly to customers (i) any digital frauds or deception to the firm or the sector of which the RFSP is aware, (ii) the supports available to customers and (iii) actions that customers can take in the event of financial abuse, in relation to the RFSP's product or service.
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