The implied consent mechanism
A Hong Kong company may choose to adopt the “implied consent mechanism” for disseminating corporate communication by means of website if:
- its articles of association or, in the case of a debenture, its debenture instrument contains the relevant provision that allows the implied consent mechanism; and
- it has sent a one-off notification to its members and debenture holders to inform them that corporate communication will be disseminated on its website. There is no need to obtain their express consents.
The model articles in the Companies Ordinance have been revised so that new companies to be formed under the Ordinance may adopt the implied consent mechanism to disseminate corporate communication by means of website.
In any event, members or debenture holders may request the company to provide electronic copies (such as through email) or hard copies of corporate communication.
Whether it is necessary to send a separate notification to members or debenture holders every time of uploading new communication on the website
If a company listed in Hong Kong so adopts the implied consent mechanism, it is no longer required to send a separate notification to members or debenture holders every time when it uploads a new corporate communication on its website. Also stakeholders of the Hong Kong listed company may receive publications made by that company through the News Alert service provided by The Hong Kong Exchanges and Clearing Limited.
However, if it is an unlisted company which adopts the implied consent mechanism, it must obtain the prior express consent from its members and debenture holders to dispense with such separate notifications. Failing this, it will still be required to issue a separate notification to each of these stakeholders for each upload of corporate communication on its website.
Key points to note
While the companies are liberty to decide which consent mechanism by way of express, deemed or implied consent mechanisms to adopt for communication by means of website, the companies are reminded to strictly follow the relevant statutory requirements. If a company fails to comply with the relevant legal requirements, any document or information purported to be sent by the company by means of website would not be regarded as sent.
Additionally, the companies should carefully consider their cyber safeguards and fraud prevention strategies when disseminating corporate communication by electronic means or via websites.
