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Obligation to Have Company Websites and Information Sharing Requirements

2015 - Summer Issue

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Corporate and M&A

2015

GSI Teampublication

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ABSTRACT

Since the beginning of 1990s, Internet has become an instrument contributing to the development of fast access to information and facilitating the transfer of information. Therefore, numbers of provisions especially in public and commercial areas were implemented in the Turkish Law in order to keep pace with the changes in information society. Correspondingly, obligation to have a website and information sharing requirements for capital stock companies subject to independent auditing both appears as an important legal regulation in commercial area. This article covers the subjects of which companies are subject to obligation to have a website under which conditions; in which ways such companies can receive support service; what kind of information the companies’ websites should contain; what are the additional requirements within the scope of legal regulation concerning websites and lastly; the sanctions for the breach of obligation to have a website.

1. INTRODUCTION

In article 1524 of the Turkish Commercial Code numbered 6102 (“TCC”), under the heading of electronic processing and information society services, in order to ensure the highest level of transparency, an obligation to have a website and allocate a certain part of such website to publication of the company’s announcements to be made by law is envisaged for the companies subject to independent auditing. In the preamble of the said article, website is expressed as the tool to easily access company’s information, statements, invitations, declarations and to the documents, reports, financial statements, answers to asked questions prepared by the company by everyone; ensuring the most reliable transparency at the highest level1.

The legal regulation concerning websites to be built by capital stock companies is laid down in the “Regulation on Websites to be Built by Capital Stock Companies” which is published in the Official Gazette dated May 31st, 2013, numbered 28663 and which entered into force on July 1st, 2013 (“Regulation”). The least possible contents to be published on the website are determined in the said Regulation, but the requirement relating to websites envisaged by the TCC and regulated by the Regulation, does not impose any restriction on the contents to be published by companies; within the context of information society, all desired issues can be published.

Pursuant to article 1524 of the TCC, contents to be published within the context of information society, are required to be open for public access. This regulation is a requirement of the information society, which enables individuals to access every kind of information via new communication technologies2.

Within the scope of setting up a website and of information sharing requirement prescribed by the TCC, the companies, from the date of registration of their incorporation to the trade registry; the companies included within the scope after the effective date of the Regulation should, in three months from the date that they entered into the scope of the Regulation, should have a website and allo cate a certain part of such website to the contents to be published by the company by law. In parallel with this, the companies may either have a new website or allocate a part of their present website to the contents to be published within the scope of this requirement. Additionally, the companies should include; the date into the contents which are published as a result of setting up a website and requirement of information sharing and also in order to specify that the published matter is within the scope of information society services, the phrase “yönlendirilmiş mesaj” (directed message) in parenthesis to the contents to be published within the scope of setting up a website and information sharing requirement. Briefly, the term directed message means a message directed to a third person3. In principal, from the moment of direction, the directed message will be beyond the company’s disposal and therefore, such message can only be modified under the conditions stated in the TCC and the Regulation. The composed website pursuant to the TCC should be registered under the companies’ Central Registration System (“CRS”) number.

2. COMPANIES OBLIGED TO HAVE A WEBSITE

Pursuant to article 1524 of the TCC, capital stock companies subject to independent auditing, should have a website and allocate a certain part of such website to publication of the announcements to be made by the company by law. The companies subject to independent auditing are determined under the Resolution of Council of Ministers Regarding the Determination of Companies Subject to Independent Auditing, published in the Official Gazette dated January 23rd, 2013 and numbered 28537 (“Resolution”). According to the amendments made by the Resolution Regarding the Amendments on the Resolution Regarding the Determination of Companies Subject to Independent Auditing published in the Official Gazette dated February 1st, 2015 and numbered 29254; (a) companies by itself or together with its affiliates and subsidiaries, meeting at least two of the following criteria: (i) hav ing minimum total assets of 50,000,000 Turkish Liras, (ii) having minimum annual net sales revenue of 100,000,000 Turkish Liras and (iii) having at least two hundred employees and (b) companies that are within the scope of the lists in annex of the Resolution such as investment enterprises, portfolio management companies, banks, rating agencies, leasing companies, factoring companies should be subject to independent auditing requirement. Pursuant to Resolution, companies that exceed the limits of at least two of the three criteria stated in the Resolution on two successive accounting periods should be within the scope of independent auditing from the next accounting period. On the other hand, pursuant to the Regulation, capital stock companies which are included in the group of companies but not directly within the scope of independent auditing are exempt from the obligation to have a website.

3. CENTRAL DATABASE SERVICE PROVIDER AND ACCESS TO SUPPORT SERVICES

Pursuant to the Regulation, companies may fulfill their obligation regarding websites personally, but they may also fulfill such obligation by receiving support services from private law legal entities called Central Database Service Provider (“CDSP”). The website obligations of the subsidiary companies may be fulfilled by one of the companies in the group of companies, even if such company does not have CDSP authority. In that case, the company receiving service is deemed to have its own website. In order to continue providing support services regarding the website obligation after leaving the group of companies, the company providing such service should have a CDSP authority no later than the date of leaving. CDSPs provide services within the scope of their operating permit rendered by the Ministry of Customs and Trade (“Ministry”). The companies receiving support service from a CDSP should report to the CDSP in a format specified by the Ministry, if any; and if there is no such specified format, electronically, the contents that should be found in the allocated part of the website pursuant to the TCC and the Regulation. The companies that provide information within the scope of information sharing on their websites, should provide routing from the address “http://companydomainname/informationsocietyservices” in the website for access to relevant information, or provide direct routing to a CDSP with the phrase “information society services” added to the main page in order the part allocated to information society services on the website to be easily found by search engines via the company’s website or CDSPs.

4. CONTENTS THAT SHOULD BE PUBLISHED ON A WEBSITE

With the obligation to have a website and information sharing requirements, all information concerning the present shareholders of capital stock companies and third persons that might be related somehow to such capital stock companies should be published4 . The issues to be published on the website pursuant to the TCC, if there is no stipulated time in the TCC or the Regulation, should be published within five days from the date when the transaction or fact that the matter to be published is based on occurs; the contents due to registration or declaration, should be published within five days from the date when the registration or declaration is made; the issues to be published in the period between the date of the incorporation of the company and the setting up of the website, should be published on the date of setting up the website. Also, unless a longer period of time is predicted by the TCC and other related laws or administrative regulations, a matter published on the company’s website should remain on the website at least six months from the date of publication; otherwise such matter is deemed unpublished. In addition to this, as stated below, the Regulation predicts certain publication times for some issues.

4.1 Contents to be Published Permanently on a Website

Pursuant to the Regulation, following issues should be published permanently on the website and in case an alteration occurs, their new version should be published on the website, on the date which such an alteration occurred.

a. Company’s CRS number, trade name, registered office, committed and paid capital and names and surnames of governing body members of the company.

b. In case a legal person is designated as a governing body member; the statement regarding the registration and announcement of the real person designated by and on behalf of such legal person together with the legal person, designated legal person’s CRS number, trade name, registered office and name and surname of the real person registered with the legal person.

c. The elected auditor’s name and surname or title, settlement or registered office and registered branch, if any.

4.2 Contents to be Published for a Period of at Least Six Months on a Website

The 3rd Paragraph of Article 6 of the Regulation envisages that certain contents should be published for at least six months and specifies their latest publication time. Along with these contents the essential ones are as follows:

a. The first text of the articles of association should be published on the website within five days from the date of announcement of the incorporation of the company in the trade registry gazette; resolutions of general assembly regarding the amendments to the articles of association and the amendments should be published on the website within five days from the date of publication in the trade registry gazette.

b. Board resolution indicating persons authorized to represent the company and their forms of representation should be published on the website within five days from the date of publication in the trade registry gazette.

c. Agreements regarding the acquisition or lease of an operation or a property in kind at a price exceeding one tenth of the capital within two years from the registration of the company should be published on the website within five days from the date of publication in the registry gazette.

d. The merger agreement, merger report and the financial statements, annual reports, interim balance sheets of the last three years should be published on the website to be submitted to shareholders’ examination no later than thirty days before the general assembly resolution.

e. The division agreement or plan, division report and the announcement regarding the right of examination of the financial statements, annual reports, interim balance sheets of the last three years and where such documents are deposited and kept available for the examination should be published on the website no later than two months before the decision of division.

f. The announcement regarding the invitation of general assembly should be published on the website at the date of publication in the trade registry gazette at the latest; in case of an postponement of the negotiation of the financial statements and other relating contents at the general assembly to one month later, the announcement made to shareholders regarding such situation should be published on the website within five days from the decision of postponement.

g. In case of a capital decrease, detailed explanations regarding the reasons of the capital decrease, the purpose and the method of decrease, should be published on the website within five days from the date of publication of the announcement regarding the invitation of general assembly, including such explanations, in the trade registry gazette; the announcement made to creditors three times seven days apart, should be published on the website within five days from the date of publication of the first announcement in the registry gazette.

h. Board of directors’ report, indicating the reasons of the removal of and the restriction on preemptive rights, the reason of the issuance of premium and no premium shares and indicating how the premium is calculated, should be published on the website within five days from the date of publication in the trade registry gazette.

i. In case board of directors and general assembly meetings are made electronically or participation to such meetings is provided electronically, the technical report proving the convenience of electronic media for active participation should be published on the website within five days from the date of publication in the trade registry gazette.

j. The company’s general assembly meeting minutes and privileged shareholders special committee’s meeting minutes should be published on the website within five days from the date of general assembly.

k. The announcement regarding an action of cancellation or nullity against the general assembly resolution should be published on the website within five days from the date of announcement made pursuant to the articles of association; the final court decision regarding the cancellation or nullity of the general assembly resolution should be published on the website within five days from the date of registration.

l. The announcement regarding an action of annulment against the company and the court decision on such action should be published on the website within five days from the date of publication in the trade registry gazette.

5. ADDITIONAL REQUIREMENTS: ELECTRONIC ARCHIVING AND TECHNICAL REPORT

Although the obligation to have a website is determined by the TCC in general terms; the Regulation envisages some additional requirements to be applied to companies that are within the scope of such obligation; and for the companies receiving a CDSP service, to the relevant CDSP. Such additional requirements consist of archiving the contents published on the website and technical reports to be submitted to the Ministry.

Pursuant to the Regulation, the contents published on the website should be archived electronically by using a secure electronic signature and time stamp for five years from the date when the publication on the website is over, unless a longer period of time is predicted by the relevant legislation. Also, if the Ministry requires the transfer of the published contents into a CRS or other databases through a CDSP, such contents should be transferred into relevant database in accordance with the format and standards determined by the Ministry.

Pursuant to the Regulation, CDSPs should have The Scientific and Technological Research Council of Turkey to confirm the compatibility of the allocated part of their website with the TCC and the Regulation and, submit the technical report regarding such confirmation to the Ministry. The said technical report requirement is also effective for CDSPs for service providing capital stock companies websites in which such companies publish their information within the scope of information sharing and website requirements. The technical report should be renewed and submitted to the Ministry every three years by the CDSPs.

5. SANCTIONS FOR FAILURE TO COMPLY WITH THE OBLIGATION TO HAVE A WEBSITE

The TCC has imposed various sanctions for the breach of information sharing and website requirements. Pursuant thereto, the breach of such requirements leads to cancellation of the relevant resolutions on the grounds of illegality and to the formation of all other consequences of illegality. Also, it would result legal liability of the faulty managers and board members.

Together with the legal responsibility, article 562 of the TCC has also imposed a criminal liability for the company’s managing body members. Pursuant thereto, managing body members of the companies which do not create a website, should be imposed punitive fine from one hundred up to three hundred days; managing body members of the companies which do not duly publish the contents to be published should be imposed punitive fine up to one hundred days.

Another legal consequence that should be mentioned is the right to sue relating to the removal of blocking and limitation of access to information. As explained above, the part allocated to information society services of the website should be open to public access. In this direction, using such right of access cannot be limited by requirements such as being concerned or having an interest and also cannot be subjected to a condition. In case of the breach of such requirement, anybody may bring a lawsuit regarding the removal of blocking pursuant to the 3rd paragraph of the article 1524 of the TCC.

6. CONCLUSION

Especially since the second half of 1990s, in Turkey, as well as the rest of the world, there has been an increase on the efforts to become an information society5 . Easily accessible information for individuals is one of the basic characteristics of the information society. In this respect, the obligation to have a website and information sharing requirements regulated by the TCC lead Turkey towards an information society. Nowadays, Internet is a very dynamic field; international studies on such field regarding information society are also quite intense. Within this context, the preamble of the TCC stated that the regulation on websites is open to developments; and that with amendments, the regulations concerning such matter could expand6 . Therefore, it should be noted that aforementioned requirements may come across as more detailed and with a larger scope, in the near future.

BIBLIOGRAPHY

“Ülkemizde Bilgi Toplumuna Dönüşüm,” erişim 23.02.2015, http://www. bilgitoplumu.gov.tr/bilgi-toplumu/ulkemizde-bilgi-toplumuna-donusum/.

Bilgili, Fatih ve Demirkapı, Ertan. Şirketler Hukuku. (Bursa: Dora, 2012).

Gündoğdu, Hakan Gökhan. “Bilgi İletişim Teknolojilerinin Rolü: Elektronik Boyutta Katılım Yöntemleri”, XIX. Türkiye’de İnternet Konferansı - Bildiri Metinleri (2014). erişim 24.02.2015, http://inet-tr.org.tr/inetconf19/bildiri/58-uzun.pdf Kendigelen, Abuzer.

Yeni Türk Ticaret Kanunu - Değişiklikler, Yenilikler ve İlk Tespitler. (İstanbul: On İki Levha, 2011).

Selvi, Özgür. “Bilgi Toplumu, Bilgi Yönetimi ve Halkla İlişkiler”, Gümüşhane Üniversitesi İletişim Fakültesi Elektronik Dergisi 3 (2012). erişim 19.02.2015, http:// www.gumushane.edu.tr/media/uploads/egifder/articles/9.pdf.