Page 42 - Q&A Book.indd

POPI on the horizon – the do’s and don’ts of
direct marketing

Damian Viviers
May 2017

“I operate a cash loan business and in order to attract new
clients we hand out flyers and send SMS’s and e-mails to
Commercial individuals whose contact details we obtained from a third
party. Will I be able to market my services to potential clients
once POPI comes into operation?”

Direct marketing practices are considered to be a legitimate business
interest for many businesses worldwide and are used primarily for
attracting new clients. There are, however, certain do’s and don’ts when it
comes to direct marketing practices in South Africa, which are currently
regulated by the Consumer Protection Act 68 of 2008 (“CPA”) and the
Electronic Communications and Transactions Act 25 of 2002 (“ECTA”).
Whether a business may legitimately engage in direct marketing
practices in South Africa essentially comes down to the type of consent
that is required from consumers to conduct these practices. Consumers
may choose to either participate in direct marketing (“opting-in”) or to
cease their participation in such activities (“opting-out”).

In terms of the CPA direct marketers may market their products and
services to consumers until they choose to opt-out. Therefore, the
permission of consumers is not required for a business to contact
consumers telephonically, send e-mails and/or SMS’s. The ECTA, however,
requires marketers to inform consumers of their right to opt-out of these
communications. In the event that a consumer opts-out and does not
wish to be contacted again, the CPA obliges marketers to acknowledge
that the consumer has opted-out and keep a record in order to ensure
that the person is not contacted again.
The Protection of Personal Information Act 4 of 2013 (“POPI”), which aims
to protect the privacy of consumers and their personal information, has
been signed into law, but is not yet fully in operation. POPI will alter the
legal position in relation to direct marketing practices in South Africa, as it
will repeal the sections of the ECTA relating to direct marketing and both
the CPA and POPI will apply to the various facets of direct marketing.

POPI will apply to all direct marketing that takes place by electronic
means, which includes communication by way of automated calling
machines, facsimile machines, SMS or e-mail. However, POPI will not

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