Pre-IPO Publicity: What You Can and Cannot Say

ASIC has proposed modernising the framework governing fundraising advertising and publicity, acknowledging that the current restrictions predate modern communication channels. Until reform lands, the existing law applies in full, and it is stricter than most founders expect.

The current position

The Corporations Act restricts advertising or publicity in connection with an offer of securities that requires a disclosure document. Before a prospectus is lodged, the restrictions are at their tightest: statements that identify the issuer and refer to the intended offer are, with narrow exceptions, prohibited. After lodgement, advertising must be confined to permitted content and must refer to the prospectus.

The restrictions are not limited to formal advertising. They capture media interviews, investor newsletters, conference presentations, social media posts and comments attributed to directors or brokers. Intent is not the test; effect is.

Where companies get caught

• The enthusiastic founder interview. A trade press or podcast interview in which a director confirms IPO plans and talks up the business is publicity in connection with the offer.
• LinkedIn momentum posts. Posts by executives or advisers referencing the upcoming float, even obliquely, sit within the restriction.
• Broker research and marketing. Material prepared by advisers is attributed to the issuer's offer. ASIC's parallel review of sell-side research settings does not change the current position.
• Continuing business-as-usual marketing. Product and customer marketing may continue, but the closer content drifts toward financial performance and investment merit, the higher the risk.

A practical protocol

• Adopt a publicity blackout protocol at kick-off, covering directors, senior management, brokers and PR advisers, with a single approval channel for all external statements.
• Audit scheduled content: newsletters, conference commitments and social media calendars routinely contain items that must be pulled or rewritten.
• Institutional communications can proceed within the exceptions for certain offers to professional and sophisticated investors, but the boundary should be documented, not assumed.
• Keep a record. If ASIC raises publicity concerns during the exposure period, a documented protocol materially improves the conversation, and can be the difference between a comment and a stop order.

Reform is coming, but it has not arrived. Plan the marketing strategy around the law as it stands.

How Luma Legal can help

We prepare publicity protocols as a standard part of our IPO workstreams and review marketing and media plans against the Corporations Act restrictions before they go live.