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Durable medium:
- (a) paper; or
- (b) any instrument which enables the recipient to store information addressed personally to him or her in a way accessible for future reference and for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored. In particular, durable medium covers floppy disks, CD-ROMs, DVDs and hard drives of personal computers on which electronic mail is stored, but it excludes internet sites, unless such sites meet the criteria specified in the first sentence of this paragraph. (In relation to the equivalent business of a third country investment firm, MiFID optional exemption business or collective portfolio management, if the relevant rule derives from the MiFID Org Regulation or implements the UCITS Directive, the UCITS implementing Directive or the UCITS implementing Directive No 2) the instrument used must be:
- (i) appropriate to the context in which the business is to be carried on; and
- (ii) specifically chosen by the recipient when offered the choice between that instrument and paper.
- For the purposes of this definition, the provision of information by means of electronic communications shall be treated as appropriate to the context in which the business between the firm and the client is, or is to be, carried on if there is evidence that the client has regular access to the internet. The provision by the client of an e-mail address for the purposes of the carrying on of that business is sufficient.
— Section durable medium
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Exactly what a “durable medium” is was a source of great consternation amongst the great wise council of cash equities counsel in the run up to — yea, and subsequent to — MiFID 2, even though the definition didn't change from MiFID 1 and, indeed, it is littered throughout the European legislation.
One trick for young players: DON'T OFFER CLIENTS A CHOICE. If you offer a choice between paper and electronic, you have to respect it. If you don’t, you don’t.
FCA rulebook in a Nutshell™ (durable medium edition)
Durable medium means either (a) paper; or (b) any other communication addressed personally to the client that the client can save and keep unchanged as long as it is relevant, including disks, emails and files saved to hard drives but excluding internet pages unless they are personally addressed to the client.
Usually the form of communication must be appropriate to the relevant business and if the client is offered the choice between paper and the other communication, it must be the one the client choses.
Electronic communications count as context-appropriate if you have regular internet access.
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FCA definition
For this definition in its native habitat (ie a more reliable source than the above) see: FCA Website Definition
See also