Regulation of spam in South Africa was introduced by the Electronic Communications and Transactions Act, 2002 (ECTA) and bolstered by the Consumer Protection Act, 2008 (CPA) and the recently promulgated Protection of Personal Information Act, 2013 (POPIA).
Here is some of the legislation that is applicable to thsi?
The Electronic Communications and Transactions Act
Widely considered to be of limited practical use, section 45 of the ECTA provides that recipients of unsolicited communications are able to opt-out of future communications and may request information on where their contact details were obtained.
Whilst section 45 of the ECTA represents the point of departure in any matter regarding the receipt of unsolicited communications, it will be repealed and replaced by section 69 of the POPIA once a commencement date for the latter has been proclaimed by the Presidency.
A more comprehensive set of limitations have been provided for in both the CPA and the POPIA, please see below.
The Consumer Protection Act
Section 11 of the CPA follows in the footsteps of the ECTA by providing that you may refuse to accept, request the discontinuation of (opt-out) or pre-emptively block direct marketing communications, and that any opt-out or pre-emptive block must be respected by marketers, have their receipt confirmed in writing and that the exercise of these right must be performed free of charge.
A welcome outcome of the CPA will be the formation of a Do Not Contact Registry (DNCR) which will serve as a national database of pre-emptive blocks for both general and specific marketing advances and which will allow individuals to tailor the frequency, timing and nature of the marketing they receive (if any).
Whilst the Interactive Advertising Bureau (IAB) – formerly known as the Digital Media & Marketing Association (DMMA) – which represents a large portion of the direct marketing market, currently administers a private DNCR for its members there has been little progress on the implementation of the national DNCR contemplated in the CPA.
The Protection of Personal Information Act
Signed into law in November 2013, the POPIA represents the most ambitious attempt thus far to formulate a framework for the protection of personal information, of which the limitation of unsolicited communication for the purpose of direct marketing forms a part.
Whilst the POPIA will be of limited use prior to its commencement date (and then subject to transitional arrangements), the publication of regulations by the Minister of Justice and the formation of an Information Protection Regulator, it is hoped that the mechanisms provided for in section 69 will serve to bolster previous attempts to regulate unsolicited communications.
Section 69 of the POPIA places significant limitations on the circumstances in which a party may engage in direct marketing by means of unsolicited communications by requiring individuals to have either consented to the use of their personal information (opt-in) or for there to be an existing relationship between the parties. An existing relationship between the parties is itself subject to additional limitations and does not result in a freedom to make repeated advances.
Notwithstanding the above, you will always be entitled to opt-out of future communications for the purpose of direct marketing.