Commonwealth Numbered Acts

SPAM ACT 2003 NO. 129, 2003 - SCHEDULE 2

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.