Document ID: chunk:federal_register_of_legislation:C2016C00614:section:16
Version: federal_register_of_legislation:C2016C00614
Segment Type: section
Provision Reference: s 16
Character Range: 24247–26618

16  Unsolicited commercial electronic messages must not be sent
 (1) A person must not send, or cause to be sent, a commercial electronic message that:
 (a) has an Australian link; and
 (b) is not a designated commercial electronic message.
Note 1: For Australian link, see section 7.
Note 2: For designated commercial electronic message, see Schedule 1.
 (2) Subsection (1) does not apply if the relevant electronic account‑holder consented to the sending of the message.
Note: For the meaning of consent, see Schedule 2.
 (3) Subsection (1) does not apply if the person:
 (a) did not know; and
 (b) could not, with reasonable diligence, have ascertained;
that the message had an Australian link.
 (4) Subsection (1) does not apply if the person sent the message, or caused the message to be sent, by mistake.
 (5) A person who wishes to rely on subsection (2), (3) or (4) bears an evidential burden in relation to that matter.

Message must not be sent to a non‑existent electronic address
 (6) A person must not send, or cause to be sent, a commercial electronic message to a non‑existent electronic address if:
 (a) the person did not have reason to believe that the electronic address existed; and
 (b) the electronic message:
 (i) has an Australian link; and
 (ii) is not a designated commercial electronic message.
 (7) Subsection (6) does not apply if the person:
 (a) did not know; and
 (b) could not, with reasonable diligence, have ascertained;
that the message had an Australian link.
 (8) A person who wishes to rely on subsection (7) bears an evidential burden in relation to that matter.

Ancillary contraventions
 (9) A person must not:
 (a) aid, abet, counsel or procure a contravention of subsection (1) or (6); or
 (b) induce, whether by threats or promises or otherwise, a contravention of subsection (1) or (6); or
 (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1) or (6); or
 (d) conspire with others to effect a contravention of subsection (1) or (6).
 (10) A person does not contravene subsection (9) merely because the person supplies a carriage service that enables an electronic message to be sent.

Civil penalty provisions
 (11) Subsections (1), (6) and (9) are civil penalty provisions.
Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.