Last week, the CC took a look at Reg. FD and disclosure, generally. Within that discussion, the CC made passing reference to the problems of inadvertent disclosure in a web world. This week, we'll make that passing reference the subject of the entire issue. For what is the most likely transmission route to get information out to the world at large if not a company's website? Of course, that isn't as simple as just uploading some information and saying, "Voila, we're done." Trouble abounds with the web as a disclosure resource. As Keith F. Higgins (Ropes & Gray LLP) notes in today's fascinating download, Using Web Sites as a Means of Public Dissemination: The Commission Guidance, companies have been trying for years to figure out how best to "use electronic media, including posting on its web site, to satisfy...obligations to disclose or deliver information under the securities laws," even since the SEC released its guidance on Use of Electronic Media for Delivery Purposes in 1995. He notes that things haven't really changed since then, and "we have yet to establish a comprehensive scheme that provides companies with certainty in application." So just how is it that companies can use their websites to satisfy disclosure requirements without getting caught in a web of their own making?

The CC likes Higgins' article because it doesn't pull punches. It gives the SEC its due while suggesting that perhaps 2008's interpretive follow-up Commission Guidance on the Use of Company Web Sites, while "admirably collecting and clarifying some of the law and lore in this area, did not significantly advance us towards" the goal of a comprehensive scheme. His work is a review of what is and what should be, including practice tips on how your clients' can best use their websites as disclosure tools. Thus he discusses "How do you tell if information posted on your website is 'public' for purposes of determining whether subsequent disclosure of that information runs afoul of the strictures of Regulation FD?" He then turns it around to ask "When Does a Web Site Posting Satisfy Regulation FD's Public Disclosure Requirement?" That's both sides of the coin. Higgins uses the SEC Guidance to inform his discussion of these matters, addressing interesting problems, such as liability for previously posted material, the conundrum of hyperlinks to third-party information and formatting issues (i.e., the "print" command). Still, for Higgins the bottom line is that the area remains murky: "Although the Commission commendably attempted to increase the utility of web site posting as an alternative method of public dissemination, its efforts will likely not provide the clarity and certainty that companies desire."