16Unsolicited commercial electronic messages must not be sent

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.