THE CORPORATIONS LAW

CHAPTER 6D - FUNDRAISING

PART 6D.3 - PROHIBITIONS, LIABILITIES AND REMEDIES

Division 1 - Prohibitions and liabilities

SECTION 734   RESTRICTIONS ON ADVERTISING AND PUBLICITY  

734(1)  No advertising or publicity for offers covered by the exception for 20 issues in 12 months.  

A person must not:

(a)  advertise; or

(b)  publish a statement that directly or indirectly refers to;

an offer, or intended offer, of securities that would need a disclosure document but for subsection 708(1) (exception for 20 issues in 12 months).

734(2)  Advertising or publicity for offers that need a disclosure document.  

If an offer, or intended offer, of securities needs a disclosure document, a person must not:

(a)  advertise the offer or intended offer; or

(b)  publish a statement that:

(i) directly or indirectly refers to the offer or intended offer; or

(ii) is reasonably likely to induce people to apply for the securities;

unless the advertisement or publication is authorised by subsection (4), (5), (6) or (7).

734(3)  Image advertising.  

In deciding whether a statement:

(a)  indirectly refers to an offer, or intended offer, of securities; or

(b)  is reasonably likely to induce people to apply for securities;

have regard to whether the statement:

(c)  forms part of the normal advertising of a body's products or services and is genuinely directed at maintaining its existing customers, or attracting new customers, for those products or services; and

(d)  communicates information that materially deals with the affairs of the body; and

(e)  is likely to encourage investment decisions being made on the basis of the statement rather than on the basis of information contained in a disclosure document.

734(4)  Dissemination of disclosure document.  

A person may disseminate a disclosure document that has been lodged with ASIC without contravening subsection (2). This does not apply if an order under section 739 is in force in relation to the offer.

734(5)  Advertising and publicity before the disclosure document is lodged.  

Before the disclosure document is lodged, an advertisement or publication does not contravene subsection (2) if it:

(a)  if the offer is of securities in a class already quoted - includes a statement that:

(i) a disclosure document for the offer will be made available when the securities are offered; and

(ii) anyone who wishes to acquire the securities will need to complete the application form that will be in or will accompany the disclosure document; and

(b)  in any other case - contains the following but nothing more:

(i) a statement that identifies the offeror and the securities

(ii) a statement that a disclosure document for the offer will be made available when the securities are offered

(iii) a statement that anyone who wants to acquire the securities will need to complete the application form that will be in or will accompany the disclosure document

(iv) a statement of how to arrange to receive a copy of the disclosure document.

To satisfy paragraph (b), the advertisement or publication must include all of the statements referred to in subparagraphs (i), (ii) and (iii). It may include the statement referred to in subparagraph (iv).

734(6)  Advertising and publicity after the disclosure document is lodged.  

After the disclosure document is lodged, an advertisement or publication does not contravene subsection (2) if it includes a statement that:

(a)  the offers of the securities will be made in, or accompanied by, a copy of the disclosure document; and

(b)  anyone wishing to acquire the securities will need to complete the application form that will be in or will accompany the disclosure document.

734(7)  General exceptions.  

An advertisement or publication does not contravene subsection (2) if it:

(a)  relates to an offer of securities of a listed body and consists of a notice or report by the body, or one of its officers, about its affairs to the relevant securities exchange; or

(b)  consists solely of a notice or report of a general meeting of the body; or

(c)  consists solely of a report about the body that is published by the body and:

(i) does not contain information that materially affects affairs of the body other than information previously made available in a disclosure document that has been lodged, an annual report or a report referred to in paragraph (a) or (b); and

(ii) does not refer (whether directly or indirectly) to the offer; or

(d)  is a news report or is genuine comment, in a newspaper or periodical or on radio or television relating to:

(i) a disclosure document that has been lodged or information contained in such a disclosure document; or

(ii) a notice or report covered by paragraph (a), (b) or (c); or

(e)  is a report about the securities of a body or proposed body published by someone who is not:

(i) the body; or

(ii) acting at the instigation of, or by arrangement with, the body; or

(iii) a director of the body; or

(iv) a person who has an interest in the success of the issue or sale of the securities.

Paragraphs (d) and (e) do not apply if anyone gives consideration or another benefit for publishing the report.

734(8)  Liability of publishers.  

A person does not contravene subsection (1) or (2) by publishing an advertisement or statement if they publish it in the ordinary course of a business of:

(a)  publishing a newspaper or magazine; or

(b)  broadcasting by radio or television;

and the person did not know and had no reason to suspect that its publication would amount to a contravention of a provision of this Chapter.

Note:

Depending on the circumstances of the publication, the person may, however, commit an offence by being involved in someone else's contravention of subsection (1) or (2).

734(9)  Pathfinder documents.  

A person does not contravene subsection (1) or (2) by sending a draft disclosure document for securities to a person if an offer of the securities to the person would not require a disclosure document because of subsection 708(8) or (10) (sophisticated investors) or 708(11) (professional investors).