On 18 April 2017, the FCA published the April 2017 edition of its Regulation Round-up.

Among other things, the news and publications section of the round-up refers to a new “durable medium” FCA webpage

The webpage (which was last updated on 7 April 2017) aims to clarify the meaning of durable medium, as well as explaining its origin, purpose and interpretation, as follows:

• Background to the concept of durable medium. It is essential for firms to understand their obligations when using non-paper methods of communication, and how they might meet those obligations. This is particularly important given the growing use of non-paper based formats of disclosure. In light of the feedback to its June 2015 smarter customer communications discussion paper (DP15/6), the FCA is proposing (in CP17/6) to update the Handbook definition of the durable medium by removing references to outdated media
• Firms’ choice of durable medium. Firms have highlighted a lack of clarity as to whether the following forms of media meet the criteria of being a durable medium:
  1. Mobile and tablet apps;
  2. Video, interactive and secure websites;
  3. Emails;
  4. PDFs; and
  5. CD-ROMs and floppy disks.

On the webpage, the FCA briefly outlines whether, and if so, how, these forms of media can satisfy the criteria.

• The origin and interpretation of durable medium. Among other things, the webpage refers to some EU cases that have considered the proper interpretation of durable medium as a term. In particular,
  1. BAWAG PSK Bank für Arbeit and others v Verein für Konsumenteninformation (Case C-375/15) ECLI:EU:C:2017:38 (25 January 2017),

In this case the Court of Justice of the EU (ECJ) followed the opinion of Advocate General Bobek in considering the issues and identifying the conditions that must be met for information to be considered to have been provided on a durable medium within the meaning of the Payment Services Directive (Directive 2007/64/EC) (PSD)

About the interpretation of durable medium, the FCA suggests that firms may wish to consider relevant EU cases to decide whether a particular system or technology might meet the durable medium criteria. Factors drew from the cases mentioned on the webpage that may help firms include:

• A principal factor underlying the notion of a durable medium is to enhance consumer protection (paragraph 61, Inconsult Anstalt v Finanzmarktaufsicht (E-04/09) (27 January 2010) (from the EFTA Court)).
• In the context of new technologies, a substitute for paper form may be regarded as meeting the requirements of consumer protection so long as it fulfils the same functions as paper form (paragraph 41, Content Services Ltd v Bundesarbeitskammer (Case C-49/11) ECLI:EU:C:2012:419 (5 July 2012)
• The instrument must allow the recipient to store the information. The information, when stored, must be accessible for as long as it is relevant to the recipient, to protect his or her interests stemming from their relationship with the provider of the information (paragraph 44, Inconsult).
• There may be several technical methods available for guaranteeing unchanged reproduction. It is to the firm in each case to ensure that the method of electronic communication employed permits this kind of reproduction (paragraph 62, Inconsult).