Corporations Act 2001
A person must not:
(a) advertise a CSF offer or an intended CSF offer; or
(b) publish a statement that:
(i) directly or indirectly refers to a CSF offer or an intended CSF offer; or
(ii) is reasonably likely to induce people to apply for securities pursuant to a CSF offer or an intended CSF offer.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).738ZG(2)
None of the following constitutes advertising a CSF offer, or publishing a statement, as mentioned in subsection (1):
(a) the publication of a CSF offer or a CSF offer document (or both), or any other information relating to a CSF offer, on a platform of the responsible intermediary;
(b) an advertisement or publication that does not refer to any particular CSF offer or intended CSF offer, and that does either or both of the following:
(i) identifies a person as being a CSF intermediary;
(ii) provides general material about the services provided by a CSF intermediary.
Paragraph (a) does not apply to statements made on the communication facility for a CSF offer.
Note: Subsection (8) deals with statements made on the communication facility for a CSF offer. For the meaning of communication facility , see subsection 738ZA(5) .738ZG(3)
In deciding for the purposes of subsection (1) whether a statement:
(a) indirectly refers to a CSF offer, or intended CSF offer, of securities; or
(b) is reasonably likely to induce people to apply for securities pursuant to a CSF offer or an intended CSF offer;
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 CSF offer document. 738ZG(4)
Subsection (1) does not apply if any of subsections (6) to (9) provide that the advertisement or publication does not contravene subsection (1).
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code ).738ZG(5)
An offence based on subsection (1) is an offence of strict liability. Exception for publicising CSF offer or intended CSF offer 738ZG(6)
An advertisement or publication that refers to a CSF offer or an intended CSF offer does not contravene subsection (1) if the advertisement or publication states that a person should, in deciding whether to make an application pursuant to the offer, consider the CSF offer document for the offer and the general CSF risk warning (whether or not the advertisement or publication also contains other material). 738ZG(7)
A person does not contravene subsection (1) by publishing an advertisement or statement if the person:
(a) publishes it in the ordinary course of a media business; and
(b) did not know, and had no reason to suspect, that its publication would amount to a contravention of subsection (1). Exception for statements made on communication facility for CSF offer 738ZG(8)
A statement made in good faith on the communication facility for a CSF offer does not contravene subsection (1). Other general exceptions 738ZG(9)
An advertisement or publication does not contravene subsection (1) in relation to a CSF offer, or an intended CSF offer, if it:
(a) consists solely of a notice or report of a general meeting of the company making, or intending to make, the offer; or
(b) consists solely of a report about the company making, or intending to make, the CSF offer that is published by the company and:
(i) does not contain information that materially affects affairs of the company, other than information previously made available in a CSF offer document that has been published on a platform of a CSF intermediary, a disclosure document that has been lodged, an annual report or a report referred to in paragraph (a); and
(ii) does not refer (whether directly or indirectly) to the CSF offer or intended CSF offer; or
(c) is a news report or is genuine comment, in the media, relating to:
(i) a CSF offer document for the CSF offer that has been published on a platform of a CSF intermediary, or information contained in such a document; or
(ii) a notice or report covered by paragraph (a) or (b); or
(d) is a report about securities of the company (or proposed company) making, or intending to make, the CSF offer that is published by someone who is not:
(i) the company; or
(ii) acting at the instigation of, or by arrangement with, the company; or
(iii) a director of the company; or
(iv) a CSF intermediary that is or will be the responsible intermediary for the offer; or
(v) any other person who has an interest in the success of the issue of the securities.
Paragraphs (c) and (d) do not apply if anyone gives consideration or another benefit for publishing the report.
[ CCH Note: S 738ZG(9) will be amended by No 69 of 2020, s 3, Sch 1, by inserting " with the Registrar " after " lodged " in para (b)(i) (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
For the purposes of this section, the media consists of:
(a) newspapers and magazines; and
(b) radio and television broadcasting services; and
(c) electronic services (including services provided through the internet) that:
(i) are operated on a commercial basis; and
(ii) are similar to newspapers, magazines or radio or television broadcasts.
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