The ACMA accepts enforceable undertaking from Alex Shehata | ACMA

The ACMA accepts enforceable undertaking from Alex Shehata

Untitled Document

Enforceable Undertaking

This enforceable undertaking is given by Alex Shehata,                                              , (ABN 19 561 645 260), trading as Australian Advertising & Marketing Network, pursuant to section 38 of the Spam Act.

1.    Definitions and interpretation

1.1         In this Undertaking:

(a)  ACMA means the Australian Communications and Media Authority;

(b)  CEM means a commercial electronic message, as that phrase is defined in the Spam Act;

(c)  double opt-in process means a two stage process by which an electronic account-holder is required to initially consent to the receipt of CEMs and then confirm their consent, prior to receiving a CEM;

(d)  Spam Act means the Spam Act 2003;

(e)  Undertaking means this enforceable undertaking.

1.2         Unless otherwise specified, words and expressions defined in the Spam Act have the same meaning in this Undertaking as in the Act.

1.3         A reference to legislation includes any modification or re-enactment of it, and all regulations made under it.

2.    Term of Undertaking

2.1         The Undertaking commences on the date the ACMA notifies Alex Shehata that it has accepted Mr Shehata’s signed Undertaking (‘commencement date’).

2.2         This Undertaking will cease to have effect 24 months after the commencement date, unless the ACMA earlier consents to the withdrawal of this Undertaking in accordance with subsection 38(2) of the Spam Act.

3.    Background

3.1         Alex Shehata is an individual/sole trader, trading as the Australian Advertising and Marketing Network (AAMN), an online printing company.

3.2         The ACMA commenced an investigation on 25 November 2013 into whether Alex Shehata was in contravention of the Spam Act, in particular section 16 which requires that CEMs must not be sent or caused to be sent without the consent of the electronic account-holder to whom the message is addressed.

3.3         Mr Shehata was informed by letter dated 25 November 2013 of the commencement of the investigation. On 17 December 2013, the ACMA wrote to Mr Shehata outlining its preliminary views and providing him with an opportunity to comment.

3.4         On 2 January 2014, Mr Shehata informed the ACMA that he has voluntarily ceased sending CEM’s to all his customers until he has established record keeping processes for the keeping of records of consent.

3.5         Based on the evidence and information gathered during the course of its investigation, the ACMA is satisfied that Mr Shehata is in contravention of section 16 of the Spam Act by sending or causing to be sent, 69 CEMs in the period between 5 June 2013 and
18 November 2013, without the consent of the electronic account-holder to whom the message was sent.

3.6         In response to the ACMA’s findings, Mr Shehata offers this Undertaking to ensure that he complies with the Spam Act.

4.    Undertakings

Record Keeping

4.1         Within 3 months of the commencement date, Alex Shehata undertakes to have in place a process for making records of consent from electronic account-holders of all electronic addresses to which he sends or causes to be sent, CEMs (‘consent records’).

4.2         Alex Shehata undertakes to retain consent records for a period of 1 year from the date on which the electronic account-holder:

  • withdraws consent; or
  • last purchased goods of services.

4.3         For the duration of the enforceable undertaking, Alex Shehata undertakes to provide to the ACMA, upon written request, consent records. The consent records must be provided to the ACMA within 14 days of receipt of any such request.

4.4         Alex Shehata undertakes to cease sending all CEMs until he has the record keeping processes outlined in section 4.1 in place.

Double opt-in process

4.5         Alex Shehata undertakes to establish a double opt-in process for obtaining consent from the electronic account-holder of an electronic address who requests or consents to receipt of CEMs from
Mr Shehata. The double opt-in process must require the electronic account-holder to confirm their consent to the receipt of CEMs using the electronic address to which CEMs will be sent.

4.6         Alex Shehata undertakes to cease sending all CEMs until the double opt-in process is established.

5.    Acknowledgements

5.1         Alex Shehata acknowledges that the ACMA may:

(a)  issue a media release on execution of this Undertaking referring to its terms;

(b)  publish this Undertaking or make it available for public inspection; and

(c)  refer to this Undertaking publically from time to time.

5.2         Alex Shehata acknowledges that acceptance by the ACMA of this Undertaking does not derogate from any rights and remedies available to any other person arising from the conduct described in this Undertaking.

Signed by Alex Shehata.

Last updated: 15 April 2016