With the posting of Release No. 34-58288, Commission Guidance On The Use Of Company Web Sites, on August 1, 2008, the Securities and Exchange Commission revisited the information disclosure requirements of Regulation FD, giving public companies a list of the criteria they need to satisfy when they put information on their websites.

The guidance will become effect once it is published in the Federal Register, which normally occurs within a few days following its publication.

The key question in the release centers on how companies can use their websites to distribute information to investors, particularly in light of the advances made in the Internet in the eight years since Regulation FD was published. The guidance tells companies when material posted to their websites can be considered public under Reg FD, what their liability is for the information they post, and the types of controls and procedures that are best suited for the information, and that the information should be formatted in such to make sure that it is readable, not necessarily printable.

In Release No. 34-58288, the SEC asks companies to consider:

• How they let investors know information is available on their websites,
• Whether a website is designed to guide investors to certain information,
• The extent to which information posted on a website is picked up by investors, and
• Their use of push technologies such as RSS feeds or releases through other distribution channels.

In some instances, a website disclosure, by itself, would be enough to satisfy an issuer's requirements under Regulation FD. To determine that, an issuer would have to consider the extent of the public's access to the information.

The guidance also advises companies of their liability under the antifraud provisions of Rule 10b-5 of the Securities Exchange Act of 1934, including hyperlinks to third-party information on other websites. Release No. 34-58288, was issued largely in response to a recommendation from the SEC's Advisory Committee on Improvements to Financial Reporting (CIFR), which had said that a lack of clear guidance on website disclosures had become a problem for companies.

The changes, which fall under the 1934 Act and the Securities Act of 1933, were approved at an open meeting, July 30, 2008.