Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 4.
The object of this Schedule is to define the expression consent , when used in relation to the sending of an electronic message.
Note: The concept of consent is relevant to section 16 (unsolicited commercial electronic messages must not be sent). Subsection 16(2) provides that a contravention of subsection 16(1) does not happen if the relevant electronic account - holder consented to the sending of the message.
For the purposes of this Act, consent means:
(a) express consent; or
(b) consent that can reasonably be inferred from:
(i) the conduct; and
(ii) the business and other relationships;
of the individual or organisation concerned.
3 Users of account authorised to consent on behalf of relevant electronic account - holder
(1) For the purposes of this Act, if a person other than the relevant electronic account - holder uses the relevant account to send an electronic message about:
(a) consent; or
(b) withdrawal of consent; or
(c) refusal of consent;
that person is taken to have been authorised to send that message on behalf of the relevant electronic account - holder.
(2) Subclause ( 1) does not, by implication, limit the circumstances in which a person other than the relevant electronic account - holder may:
(a) consent; or
(b) withdraw consent; or
(c) refuse consent;
on behalf of the relevant electronic account - holder.
4 When consent may be inferred from publication of an electronic address
(1) For the purposes of this Act, the consent of the relevant electronic account - holder may not be inferred from the mere fact that the relevant electronic address has been published.
Exception--conspicuous publication
(2) However, if:
(a) a particular electronic address enables the public, or a section of the public, to send electronic messages to:
(i) a particular employee; or
(ii) a particular director or officer of an organisation; or
(iii) a particular partner in a partnership; or
(iv) a particular holder of a statutory or other office; or
(v) a particular self - employed individual; or
(vi) an individual from time to time holding, occupying or performing the duties of, a particular office or position within the operations of an organisation; or
(vii) an individual, or a group of individuals, from time to time performing a particular function, or fulfilling a particular role, within the operations of an organisation; and
(b) the electronic address has been conspicuously published; and
(c) it would be reasonable to assume that the publication occurred with the agreement of:
(i) if subparagraph ( a)(i), (ii), (iii), (iv) or (v) applies--the employee, director, officer, partner, office - holder or self - employed individual concerned; or
(ii) if subparagraph ( a)(vi) or (vii) applies--the organisation concerned; and
(d) the publication is not accompanied by:
(i) a statement to the effect that the relevant electronic account - holder does not want to receive unsolicited commercial electronic messages at that electronic address; or
(ii) a statement to similar effect;
the relevant electronic account - holder is taken, for the purposes of this Act, to have consented to the sending of commercial electronic messages to that address, so long as the messages are relevant to:
(e) if subparagraph ( a)(i), (ii), (iii), (iv) or (v) applies--the work - related business, functions or duties of the employee, director, officer, partner, office - holder or self - employed individual concerned; or
(f) if subparagraph ( a)(vi) applies--the office or position concerned; or
(g) if subparagraph ( a)(vii) applies--the function or role concerned.
(1) The regulations may provide that, for the purposes of this Act, the consent of a relevant electronic account - holder may not be inferred in the circumstances specified in the regulations.
(2) The regulations may provide that, for the purposes of this Act, the consent of a relevant electronic account - holder may be inferred in the circumstances specified in the regulations.
6 When withdrawal of consent takes effect
(1) For the purposes of this Act, if:
(a) one or more electronic messages have been sent to the relevant electronic account - holder's electronic address; and
(b) the relevant electronic account - holder has consented to the sending of those commercial electronic messages to that electronic address; and
(c) an individual or organisation authorised the sending of those commercial electronic messages to that electronic address; and
(d) the relevant electronic account - holder, or a user of the relevant account, sends the individual or organisation:
(i) a message to the effect that the account - holder does not want to receive any further commercial electronic messages at that electronic address from or authorised by that individual or organisation; or
(ii) a message to similar effect;
the withdrawal of consent takes effect at the end of the period of 5 business days beginning on:
(e) if the message referred to in paragraph ( d) is an electronic message--the day on which the message was sent; or
(f) if the message referred to in paragraph ( d) was sent by post--the day on which service of the message was effected (see section 29 of the Acts Interpretation Act 1901 ); or
(g) in any other case--the day on which the message was delivered.
(2) For the purposes of subclause ( 1), a business day is a day that is not a Saturday, a Sunday or a public holiday in:
(a) if the message referred to in paragraph ( 1)(d) is an electronic message--the place to which the message was sent; or
(b) if the message referred to in paragraph ( 1)(d) was sent by post--the place to which the message was sent; or
(c) in any other case--the place where the message
was delivered.