Canada: SEC Guidance On Company Website Disclosure Best Practices – Implications For Canadian Issuers

Copyright 2008, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Corporate Finance, October 2008

In light of ongoing developments in web-based technology and the dramatic increase in the use of the Internet, the SEC recently published an interpretive release (the SEC Release) updating its guidance on the use of company websites as a means of disclosing corporate information under U.S. securities laws. The SEC Release encourages SEC issuers to use company websites to provide public disclosure and highlights circumstances under which website disclosure alone may meet U.S. disclosure rules, and practices companies should adopt to avoid contravening applicable antifraud provisions. In Canada, National Policy 51-201 – Disclosure Standards (NP 51-201) also encourages the use of company websites as a means of disclosing corporate information but only as a supplement to, and not substitute for, traditional forms of dissemination. However, NP 51-201 was originally informed by SEC policies regarding the use of company websites and the new position taken in the SEC Release could provide impetus for Canadian regulators to revisit NP 51-201. NP 51-201, originally introduced in 2002, states that Canadian regulators will revisit this issue as technology evolves and more investors gain access to the Internet.

The SEC Release provides guidance on (i) when information posted on a company website is deemed to be "public" for the purpose of Regulation FD and therefore not subject to selective disclosure requirements, (ii) company liability for information posted on its website, and (iii) the format in which information should be posted on company websites.


Under Regulation FD, issuers may not selectively disclose (commonly known as "tipping") material, non-public information to a select group of people (generally shareholders or investment professionals). If a company does disclose material, non-public information, it must promptly or simultaneously publicly disclose such information through an SEC filing or through another method of disclosure reasonably designed to provide broad, non-exclusionary distribution of such information to the public. Information that is deemed to be "public" does not trigger the selective disclosure requirements. Canadian securities laws similarly prohibit an issuer from tipping material information to certain individuals before the information is "generally disclosed" to the market.

In the past, the SEC's position was that information posted on a website alone is not "public". However, the SEC Release now suggests that website disclosure alone may be sufficient if (i) the issuer's website is a recognized channel of distribution, (ii) posting information on the issuer's website disseminates the information in a manner that makes it available to the market in general, and (iii) there has been a reasonable waiting period for investors and the market to react to the posted information. An analysis of whether website disclosure satisfies Regulation FD will be based on the facts and circumstances of each case. However, the SEC Release provides guidance on factors that will inform such analysis.


  • SEC provides guidance on use of company websites as means of disclosing corporate information
  • In the absence of Canadian securities administrators guidance, good set of best practices for Canadian issuers to consider
  • Consider clearly identifying historical materials on websites by dating the posted materials and locating them in a separate section of the website
  • To avoid confusion as to whether an issuer has endorsed or approved third-party information, Canadian issuers should consider explaining the context of posted hyperlinks and be explicit as to why such hyperlinks are provided

Recognized Channel of Distribution

Whether a company's website is a recognized channel of distribution would depend on the steps the company has taken to alert the market to its website and its disclosure practices.

Broadly Disseminated to Market

Whether information on a company website is broadly disseminated to the market would depend on:

  • whether the issuer has a pattern or practice of posting important information on its website;
  • the extent to which information posted on the website is regularly picked up by the market and readily available to the media;
  • the size of the market following of the issuer (i.e., small, less visible issuers may need to be more proactive in letting investors know information is available on their websites);
  • whether the issuer keeps its website accurate and current; and
  • whether the issuer uses other more predominant methods of distribution.

Reasonable Waiting Period

What would constitute a reasonable waiting period for the market to react to information posted on an issuer's website before it is deemed to be "public" would depend on the circumstances of dissemination including the size and market following of the company, the extent to which investor oriented information on the website is regularly accessed and the nature and complexity of the information.


The SEC Release also reiterates that an SEC issuer will be liable under antifraud provisions of U.S. securities laws for any material misstatement or omission of fact on their website and highlights some related areas of concern including (i) the presentation of historical information, (ii) hyperlinks to third-party websites, (iii) the presentation of summary information and (iv) company-sponsored blogs or electronic shareholder forums. In Canada, issuers, their directors and officers, and any person who knowingly influenced the issuer, director or officer to post the information, may also be held liable for misrepresentations on an issuer's website under the civil liability regime for secondary market disclosure, subject to available defences. Available defences include:

i) Non-Core Document/No Knowledge. A company or person will not be held liable if the posted information was not in a "core document" (i.e., a document filed with securities regulators), and the company or person did not know, or was not grossly negligent in not knowing that, the information contained a misrepresentation.

ii) Due Diligence. A company or person will not be held liable if the company or person conducted a reasonable investigation and had no reasonable grounds to believe the posted information contained a misrepresentation.

iii) Forward-Looking Disclaimer. A company or person will not be held liable for a misrepresentation in posted forward-looking information if a disclaimer was posted proximate to the information containing cautionary language identifying the forward-looking information, identifying factors that could cause actual results to differ materially, and a statement of the factors or assumptions that were applied in connection with the forward-looking information.

Given the similarities between the regimes, the following guidance is instructive in respect of website best practices in Canada.

Historical Information

The SEC Release clarifies that SEC issuers will not perpetually be held liable for historical information available on their website that may be inaccurate, though it was accurate at the time of posting. Only when an SEC issuer affirmatively restates or reissues a historical statement will it be subject to potential liability under the antifraud rules. The SEC does suggest, however, that SEC issuers should clearly identify materials on their websites as historical by dating the posted materials or statements and locating them in a separate section of the website.

Hyperlinks to Third-Party Information

The SEC also provides guidance on when hyperlinks to third-party information might be attributable to an SEC issuer and therefore result in liability for misrepresentations therein. Under U.S. securities laws, whether third-party information is attributable to an SEC issuer depends on whether the issuer has involved itself in the preparation of the information, or explicitly or implicitly endorsed or approved the information. Under Canadian securities laws, issuers may be similarly liable for a misrepresentation in a third-party document it releases (in written or electronic form) whether or not it authored or approved its content.

According to the SEC, to avoid confusion as to whether an SEC issuer has implicitly endorsed or approved third-party information, where an SEC issuer has provided a hyperlink on its website, it should explain the context of the hyperlink and be explicit as to why the hyperlink is provided. The SEC is of the view that detailed explanations are required where an SEC issuer is selective about the third-party information is posts (such as a specific favourable news article or analyst's report), while more general explanations are sufficient where posted information is indiscriminate. For example, if an issuer has a media page and simply provides hyperlinks to recent news articles about the issuer, both positive and negative, the risk that the issuer may be liable for a particular article due to the inference that it endorses that particular article is reduced. NP 52-201 provides similar guidance with regard to posting analysts reports on a company website and suggests that where one analyst report is posted, the names and recommendations of all analysts who cover the company should be similarly posted.

Summary Information

The SEC notes that summary information posted on a website can be helpful to investors. However, to avoid situations where an investor fails to appreciate that the information is not complete, SEC issuers are encouraged to highlight the nature of summary information by using appropriate titles and providing additional explanatory language to identify the location of, or provide hyperlinks to, the more detailed information from which the summary is derived.

Company-Sponsored Blogs and Electronic Shareholder Forums

The SEC also acknowledges the utility of interactive web features such as company-sponsored blogs and electronic shareholder forums but cautions that issuers will be held liable for misrepresentations made by company representatives in such forums to the same extent as in other communications. However, the SEC states that SEC issuers will not be held liable for statements posted on blogs or shareholder forums by third parties nor are they required to respond to or correct third-party misstatements. The SEC Release also stresses that SEC issuers cannot require investors to waive protections under U.S. securities laws as a condition to entering or participating in a blog or forum.


Finally, the SEC expresses in the SEC Release its position that information on a company website, including information posted to comply with reporting obligations under U.S. securities laws, need not be laid out in a manner that complies with "printer-friendly presentation standards" unless such a layout is otherwise explicitly required by SEC rules (as with proxy materials, for example).

The SEC Release represents a marked change in the SEC's position on the use of company websites for public disclosure, a position more aligned with the proliferation of company websites and advances in web-based technologies. Until Canadian regulators similarly revisit their policies under NP 51-201 on this issue, the SEC Release will likely become a benchmark for best practices in website disclosure for Canadian issuers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.