18Commercial electronic messages must contain a functional unsubscribe facility

#### 18 Commercial electronic messages must contain a functional unsubscribe facility (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; unless: (c) the message includes: (i) a statement to the effect that the recipient may use an electronic address set out in the message to send an unsubscribe message to the individual or organisation who authorised the sending of the first‑mentioned message; or (ii) a statement to similar effect; and (d) the statement is presented in a clear and conspicuous manner; and (e) the electronic address is reasonably likely to be capable of receiving: (i) the recipient’s unsubscribe message (if any); and (ii) a reasonable number of similar unsubscribe messages sent by other recipients (if any) of the same message; at all times during a period of at least 30 days after the message is sent; and (f) the electronic address is legitimately obtained; and (g) the electronic address complies with the condition or conditions (if any) specified in the regulations. > Note 1: For unsubscribe message, see subsection (8). > Note 2: For Australian link, see section 7. > Note 3: For designated commercial electronic message, see Schedule 1. (2) 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. (3) Subsection (1) does not apply to the extent (if any) to which it is inconsistent with the terms of a contract or other agreement between: (a) the individual or organisation who authorised the sending of the first‑mentioned message; and (b) the relevant electronic account‑holder. (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. Ancillary contraventions (6) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (1); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or (d) conspire with others to effect a contravention of subsection (1). (7) A person does not contravene subsection (6) merely because the person supplies a carriage service that enables an electronic message to be sent. Civil penalty provisions (8) Subsections (1) and (6) are civil penalty provisions. > Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions. Unsubscribe message (9) For the purposes of the application of this section to a commercial electronic message, where the sending of the message is authorised by an individual or organisation, an unsubscribe message is: (a) an electronic message to the effect that the relevant electronic account‑holder does not want to receive any further commercial electronic messages from or authorised by that individual or organisation; or (b) an electronic message to similar effect.