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.
AustLII: Copyright Policy
| Disclaimers
| Privacy Policy
| Feedback