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SPAM ACT 2003 - SCHEDULE 2

Consent

Note:       See section 4.

   

   

1   Object

                   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.

2   Basic definition

                   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.

5   Regulations about consent

             (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.



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