When And How Can A Consumer Be Direct Marketed To?
We have all experienced that frustrating auto-mated voice call attempting to sell a cellphone contract or a funeral plan, but not many of us are aware of the rules and regulations governing exactly when and how a consumer can be marketed to.
So what exactly constitutes direct marketing in the law?
Direct marketing is where a supplier communicates with a person, (electronically, by post or in person) for the purposes of advertising their goods, services or to request a donation. The Consumer Protection Act 68 of 2018 (“the CPA”) regulates the relationship between a supplier and consumer as well as controlling how and when a person can be marketed to. The Protection of Personal Information Act 4 of 2013 (the POPI Act”) sets out what consumer information can be collected and stored.
When is direct marketing allowed?
The CPA sets out strict boundaries as to when a consumer may be directed marketed to, which are:
- Mondays to Fridays between 8 am and 1 pm;
- Saturdays between 9 am and 1 pm
- When a person requests a specific time outside of the abovementioned hours.
The CPA sets out further rules that every supplier must abide by when considering marketing their product or service, which state that;
- The marketing should not be misleading or deceptive – Suppliers should not provide untrue characteristics about themselves, or their goods/service offering.
- The supplier should not force, pressure, intimidate or harass a consumer into an agreement.
- A supplier may only advertise goods and services only if they are available and can readily be supplied.
- Suppliers may not coerce a consumer into providing their contact details in exchange for a benefit.
- Suppliers may not pass a consumer’s details to third parties without their express permission.
The CPA does not set out responsibilities for the Supplier, but also gives rise to rights of the consumer when it comes to direct marketing. Some of these include;
- The right to opt-out “opt-out” within a reasonable time. This can be in the form of responding to and email/SMS communication with “no,” “stop,” “opt-out,” “unsubscribe.” A consumer may indicate their intention not to receive direct communications by registering their details on the website of the Direct Marketing Association of South Africa (“DMASA”).
- In circumstances where a consumer feels like a supplier has breached the CPA, they may lodge a complaint with the supplier or a complaints body such as the ombudsman or the National Consumer Commission.
What does the POPI Act say about direct marketing?
the POPI Act is limited to direct marketing by electronic communication, which it defined as any text, voice, sound, or image message sent over an electronic communications network, which is stored in the network or in the recipient’s terminal equipment until collected by the recipient.
Section 69 of the Act outlaws direct marketing by means of any form of electronic communication unless the data subject has given their consent. Such an electronic communication obviously includes emails, SMSs and automatic calling machines. A subject can only be approached once to obtain such a consent. Once such consent is refused, it is refused forever.
It is always good practice to be wary of the communications you give permission to, but if you do become tired or overwhelmed from the sales calls, SMS’s and emails, there are legal remedies out there to protect you as a consumer.