We are all harassed by unsolicited phone calls and SMSes from a marketing company that wants to sell a product or service that they think we need in our lives. Normally we catch a glimpse on the True Caller App and it is easy to stop the call, but as with all of us, there is that one call that slips through and you are stuck in a conversation that you cannot get out of. In terms of an article published by Business Insider on 29 April 2019, South Africa is ranked 4th in the world for nuisance and unsolicited calls.
Luckily for us as South Africans, there are three pieces of legislation that protects us in these circumstances. At first, there were two acts that regulated marketing, namely the Consumer Protection Act of 2008(CPA) and the Electronic Communications and transactions Act of 2002(ECTA). In short, these Acts required any Company or Supplier to offer the option of their current clients to opt-out if they do not want to receive these marketing services. Usually, you can reply to an SMS with the words STOP or, with a phone call, request the operator to stop any marketing and remove your contact details from their marketing profile.
Now there is a third piece of legislation that regulates the manner in which companies can utilise your personal information for marketing purposes. It is called the Protection of Personal Information Act of 2013(POPIA). The Regulator gave notice that any and or all companies need to be compliant with this Act on or before 1 July 2021. This means that the Act prohibits the use of personal information for direct marketing unless consent is given. This comes down to the requirement of all companies to offer the opt-in option to new clients’/ data subjects to utilise their information for marketing purposes. The result of the opt-in option is to give more control to the consumer/data subject over their own personal information and how it is used in this regard.
The following question arises: What do you do if the company does not adhere to the above requirements?
The first option a consumer has is to register himself on the National opt-out data basis run by the Direct Marketing Association of South Africa (DMSASA). This ensures that all the marketing companies that are registered with DMSASA do not utilise your information for marketing purposes as soon as you are on the data basis. The next step to take if you are still contacted after this is to register a formal complaint at the National Consumer Commission by contacting their offices at 012 428 7000 or by sending your complaint to complaints@thencc.org.za. If the complaint is confirmed, a formal investigation will follow, and if the company is found guilty of contravening the Consumer Protection Act, they can receive an administration fine that can equal to millions of Rands.
The other option, and in my personal opinion, the best route to follow, is to register a formal complaint at the regulator of POPIA. Remember that POPIA allows a company to contact the consumer/data subject to request permission for the purpose to utilise the information for marketing purposes. In other words, the opt-in option. If a company does not follow these strict processes set out, it can result in the fact that such a company makes itself guilty of an offence in terms of POPIA, and this may lead to jail time.
Thus taking the above into consideration, it is very important to know what your rights are and to take steps to upheld it if you feel that your information was misused for marketing.
Contact your nearest SEESA office for Consumer Protection & POPI assistance, alternatively, leave your contact details on our website for a legal advisor to contact you.
About The Author:
Altus de Wet is currently a SEESA Consumer Protection & POPI Legal Advisor in Bloemfontein. He obtained his LLB from the University of the Free State.
References:
Mhlanga, T. Say goodbye to unsolicited calls and sms’s [Online]. Mail & Guardian. Available from: https://mg.co.za/article/2018-03-23-00-say-goodbye-to-unsolicited-calss-and-smses/ [08 may 2021].
Thompson, A. You can stop sales calls and massages in minutes: how to opt out of marketing calls and complain about spam sms [Online]. Business Insider SA. Available from: https://www.businessinsider.co.za/stop-spam-calls-and-sms-opting-out-of-marketing-in-south-africa-2019-8 [08 may 2021].
Spam, What is spam? [Online]. ISPA. Available from: https://ispa.org.za/spam/ [08 may 2021].
Communication, wanted or unwanted [Online]. Legalwise South Africa. Available from: https://legalwise.co.za/help-yourself/legal-articals/direct-marketing-terms-consumer-protection-act [08 may 2021].