Direct Marketing vs The Consumer Protection Act and POPI Act (part 1)

Direct Marketing vs The Consumer Protection Act and POPI Act (part 1)

Direct Marketing vs The Consumer Protection Act and POPI Act (part 1)

What is allowed when approaching consumers with Direct Marketing activities?

Communication is a fundamental part of our lives and, with the advances in technology, it has become possible to contact consumers day or night, solicited or unsolicited, by various means of communication (i.e. e-mail, SMS and/or telephone calls).

Fortunately, the Consumer Protection Act No. 68 of 2008 (CPA) and the Protection of Personal Information Act, No. 4 of 2013 (POPIA) have introduced measures aimed at assisting consumers in the fight against unsolicited direct marketing communications.

The CPA further established an opt-out system by which suppliers are allowed to approach consumers using direct marketing, whereas POPI established an opt-in system by which a consumer is afforded the opportunity to decide whether he/she wishes to receive marketing material from a particular supplier, subject to the rules discussed below, until such time that the consumer requests the specific supplier, or suppliers in general, to desist from sending him/her direct marketing material.

For purposes of this article, it is important to note that the following consumers do not enjoy protection from direct marketing in terms of the CPA:

  • A juristic person whose asset value or annual turnover exceeds R2 000 000,00 (two million rand); and
  • The State.

Additionally, in terms of POPI a juristic person enjoys limited protection of its personal information as it is considered that such information is already in the public domain.

What is Direct Marketing?

Direct marketing applies when a supplier, either in person or indirectly by mail or e-mail, communicates with a consumer to advertise their goods or services or to request a donation.

A consumer can also be approached by means of electronic communication, including telephone, fax, SMS, e-mail or any other similar technology. With electronic communication, POPI finds its application to direct marketing. POPI provides the same definition for direct marketing, but states that it will only apply insofar as it amounts to ‘electronic communication’.

Since both the CPA and POPI will apply to direct marketing, it is anticipated that this legislation will apply concurrently as far as possible, after which the Act that affords consumers the best protection will apply.

Can a consumer restrict a supplier from direct communication? 

  • A consumer has the right to refuse, terminate or pre-emptively block a supplier from communicating directly with him/her.
  • In terms of the CPA, once a consumer has been contacted by the supplier for purposes of direct marketing, the consumer may demand, within a reasonable time after receiving such communication, that the supplier should stop communicating with him/her. This demand can take the form of replying “NO”, “STOP” or “OPT OUT” to an SMS or email received from the supplier.
  • Once in receipt of such a demand, the supplier may not direct or permit any associated person to contact the consumer again, nor may the supplier request a consumer to pay a fee for demanding that the supplier stop communicating with him/her.

A supplier should therefore implement appropriate measures and procedures to facilitate the receipt of demands to desist from communicating with a consumer. A consumer may also pre-emptively indicate his/her intention not to receive direct marketing communication from a supplier, either directly or by registering on the Direct Marketing Association of South Africa’s website (DMASA).

Don’t miss our next article where we will look closely at how consumers can exercise their rights pre-emptively; the instances when a supplier can communicate directly with a consumer and also the consequences should a supplier fail to comply with the provisions of the CPA.

About the Author: Montenique Hayward is a BCom (Law) [2011], LLB [2013] and LLM [2017] graduate from the University of Pretoria. During her LLM studies, she specialised in Consumer Protection and was, subsequently, awarded the JUTA award for the highest mark obtained at the end of her LLM. She was also admitted as an attorney of the High Court in 2015 and practiced as such before joining our team in 2017 as a Corporate Legal Advisor.

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