Company must operate its
own website…

Art. 5
§5 of the Commercial Companies Code provides: “A joint-stock company or
joint-stock limited partnership shall operate its own internet site and shall
also post there, in sections set aside for communication with shareholders,
announcements from the company required by law or the articles of association.”

While the
purposive interpretation of this provision seems clear (as discussed below),
its literal wording may raise doubts, as it requires each company (or
partnership) to “operate” a website, and it must be the company’s “own” site.

The
Commercial Companies Code does not contain a definition of a website, but the
definition set forth in Art. 4(10) of the Act on Digital Access to
Websites and Mobile Applications of Public Entities of 4 April 2019 may be
cited. According to that definition, a website is “a set of logically arranged
elements, combined through navigation and links, presented with the help of a
web browser at a consistent electronic address.”

In turn,
another law (the Electronic Services Act of 18 July 2002) defines
“electronic address” as “the designation of a teleinformatic system
facilitating understanding using means of electronic communications, in
particular e-mail.”

For a
website to be accessible online, naturally it must be stored somewhere (at a
location indicated by the electronic address). As the drafters of this
amendment did not specify that to meet the requirements set forth in
Art. 5 §5 the site must be stored at any particular place, it should be
accepted that it may be stored anywhere. Consequently, this could be a server
belonging to the company or to some other entity (e.g. a provider of hosting
services). But if operating the site will require processing of personal data,
when selecting the location of the server it is important to bear in mind the
General Data Protection Regulation, and in particular the restrictions on
transferring personal data outside the EU or the European Economic Area.

The site
must operate at an “electronic address,” but in this respect the lawmakers did
not specify what address this should be. URL addresses (such as
https://www.example.com/) are used to designate websites and the resources
accessible there. The domain is an essential part of the URL address. This
could be a domain registered by the company itself, or a third party which
makes the domain available to the company for its use. It should be considered
permissible also to use a sub-domain (such as corporate.example.com). But it
should be checked in advance that the domain name used by the company does not
infringe the rights of third parties (e.g. under registered trademarks).

Furthermore,
an “electronic address” as such may display varying degrees of specificity. It
may be limited to indicating the domain (e.g. https://example.com/), in which
case it is suggested that from the homepage it is easy to reach the “sections
set aside for communication with shareholders,” particularly if it is an
extensive site. The address could also refer to a specific element of the site,
such as a file or folder (e.g. https://example.com/pl or
https://example.com/strona.html). Any of these addresses undoubtedly qualifies
as an “electronic address” for purposes of the definitions discussed above.

…or maybe not

According
to the new Art. 5 §5 of the Commercial Companies Code, a website must be
“operated” by a company (or partnership). Although this wording suggests that
the company must itself operate (administer) its own site, it does not seem
that this was the aim of the drafters, and contrary to the literal wording of
this provision, this is not what the provision means. We could even conjecture
that in the great majority of cases, not only hosting services (providing room
on a server) but also operation of sites (in the sense of administering the
site and uploading changes) is provided by external entities. Registering a
domain name also requires conclusion of a contract with an external entity. In
this context, a company “operates” its own site in the sense that it
independently decides what will be found on the site and when, but the company
nonetheless hires a specialised external entity to perform the function of administrator
of the site.

The
amended Art. 47(1) of the National Court Register Act requires joint-stock
companies and joint-stock limited partnerships to submit to the registry court
the address of their website referred to in Art. 5 §5 of the Commercial
Companies Code. The address is then entered in section 2.1 of the commercial
register for the company, and thus is public, and any interested person can
easily determine the website (address) where the company publishes the
announcements required by the law.

Thus it
cannot be accepted that to ensure compliance with these regulations, the
company must “operate” all on its own a website using an address from a domain
registered by the company itself. To the contrary, so long as the requirements
indicated in the code are met, i.e. visitors to the site can easily determine
that it is the site of that company (e.g. a specific company which is part of a
capital group, regardless of who is the “owner” of the site, and thus, citing
the definition referred to above, the owner of the collection of data), the
address of the site is indicated in the commercial register, and the site
contains the required information, then the requirements of the code should be
regarded as fulfilled—even if the site technically constitutes a sub-site on
the website of a group of companies.

We can
pursue this line of reasoning even further. The fact that the code requires a
company to have a website does not mean that the company can have only one
site. Often companies maintain numerous sites, devoted for example to various
product lines or business segments (particularly in the case of bigger
companies). For purposes of the code, basically the company should “designate”
one site and publish its address by disclosing it in the commercial register.
But this does not mean that apart from that site, the company cannot operate
other sites as well, even if they are unconnected (not linked) to the
“commercial register” site.

What must be published, and
where

Under
Art. 5 §5 of the Commercial Companies Code, announcements by joint-stock
companies and joint-stock limited partnerships must be published “also” on
their website. This means that the new obligation essentially expands the list
of media where companies must publish certain information. This list still
includes the judicial and commercial gazette Monitor Sądowy i Gospodarczy
as well as other publications indicated in the law or the company’s articles of
association.

Undoubtedly,
announcements that should be posted on the company’s website include all
announcements required by law and previously published in the other places
mentioned above, in particular notices subject to publication in Monitor
Sądowy i Gospodarczy (i.e. information entered in the commercial register),
announcements required by law (e.g. a summons to creditors in the case of a
reduction of share capital or liquidation), and announcements convening the
general meeting of the company or partnership.

Apart from
such announcements, the website should also include the entity’s basic details
required under Art. 127 §5 of the code (for a joint-stock limited
partnership) or Art. 374 (for a joint-stock company), i.e. its name,
registered office, address, National Court Register number, registry court, tax
number, share capital and paid-up capital.

Summary

Returning
to the aim of the new regulation, mentioned at the start, there is no doubt
that the purpose is to require joint-stock companies and joint-stock limited
partnerships to publish certain information, specified in the law or the
articles of association, on a website whose address is indicated in the
register maintained for the company or partnership and which is accessible to
all users (that is, access to the site is not controlled by a password, and
does not require any special know-how or software).

The management board is charged with the responsibility of ensuring that the site is operated in compliance with the code. Failure to observe this duty may have far-reaching consequences, including liability of the management board members but also defectiveness of resolutions by the general meeting if information about the meeting was not properly posted on the site (as discussed in our earlier article).

Maciej A. Szewczyk, Rafał Kuchta