‘Investment agreement’
Pages 8

Advertisements containing information ‘calculated’ to lead directly or indirectly to persons entering into an investment agreement or exercising certain rights conferred by an investment may also amount to investment advertisements.104 The expression ‘calculated’ has been taken by regulators105 to mean ‘likely’. That is to say, they have adopted a test of asking whether something is ‘likely’ rather than whether it is intended. Of course, whether or not information is likely to lead to persons buying or selling shares,106 is a question of fact and degree. However, if it is correct to adopt the ‘likely’ test, the motives of the person issuing or causing the advertisement to be issued are not of primary relevance and it would not be a defence for him to show that it was never his intention that the advertisement should have the effect of inducing persons, for instance, to buy or sell investments. The question would be whether it contained information ‘likely’ to have that effect. If it did, the advertisement would be an investment advertisement.