(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.