30 June 2020 by POPI Bumper Special Alert

Five legal tips for direct marketing

Direct marketing is often favoured as a popular means of product marketing, especially for start-ups looking to grow their customer base. It is, however, often also a source of irritation for many consumers as suppliers are increasingly testing the boundaries of what is allowed. Internationally, personal information data breaches are attracting heavy fines by regulators, British Airways, Facebook and Yahoo already having attracted fines in the region of US$500,000, and when the Protection of Personal Information Act (POPI) (which will regulate direct marketing via electronic communication) comes into force, regulation of direct marketing in South Africa is going to become even stricter. South African companies better ensure that they get their ducks in a row - whether it’s direct marketing by post, telephone, email or SMS, make sure that your business doesn’t cut any corners.

These five tips should assist.

  1. Obtain consent

Ensure you have consent. Direct marketing via any form of electronic communication including automated calling machines, faxes, SMSes and email will no longer be permitted once POPI comes into force, unless the person has either given his/her consent to receive such electronic communication, or is an existing customer. Otherwise, the person’s consent will be required. For this purpose, the responsible party may approach a person whose consent is required, and who has not previously withheld such consent, only once in order to request the consent of such person. If the person is an existing customer, the responsible party may only send direct marketing electronically to such person if (1) the customer’s contact details were obtained in the context of a sale of a product or service; (2) for the purpose of direct marketing of similar products or services; and (3) the customer has been given a reasonable opportunity to object to the direct marketing (i) at the time the personal information was collected; and (ii) on every communication. In respect of direct marketing via telephone, post and in person, every person similarly has the right to refuse to accept the unwanted direct marketing and require the supplier to discontinue such activity.

  1. Don’t forget the “unsubscribe” option

The Consumer Protection Act (which regulates direct marketing by post and telephone) and POPI (which regulates direct marketing by electronic communication) empower consumers to block marketing communications. All electronic direct marketing communications must contain an “unsubscribe” option. Similarly, physical post boxes containing a direction that “no junk mail” will be accepted cannot be used for direct marketing. Companies are going to need to manage their customer databases a lot more effectively – where, how and when was the personal information initially obtained; whether the person is an existing customer and, if so, in respect of what products or services; whether the person has consented to receiving direct marketing; and whether the person has unsubscribed from receiving direct marketing. In particular, companies are going to need to adopt a vigilant approach in enforcing requests from consumers to discontinue any marketing activities.

  1. Include the sender’s details

All direct marketing communications must contain the sender’s details. Any communication for the purpose of direct marketing must contain the details of the identity of the sender or the person on whose behalf the communication has been sent; and an address or other contact details to which the recipient may send a request that such communications cease.

  1. Stick to permitted contact times

Stick to the permitted contact times. Specific days and times of days have been prescribed for direct marketing, and a supplier must not engage in any direct marketing directed to a consumer at home for any promotional purpose during a prohibited period. The prohibited times for contacting consumers at home (this includes via telephone, SMS or email) are as follows: Sundays or public holidays; Saturdays before 09h00 and after 13h00; and all other days between the hours of 20h00 and 08h00 the following day, except to the extent that the consumer has agreed otherwise. A direct marketer is not in breach if it has sent out the direct marketing within the period provided for even if the consumer received the direct marketing outside of the aforementioned period, but the onus to prove that the direct marketing was dispatched during the allowed period rests fully on the direct marketer.

  1. Beware the “cooling-off” period

It is important to bear in mind that a consumer has an entitlement under the CPA to cancel a transaction resulting from any direct marketing without reason or penalty, by written notice to the supplier, within 5 days after the later of (1) the transaction was concluded; or (2) the goods were delivered to the consumer.

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