Nightmare on direct marketing street

 
The long awaited POPI regulations are here. They don’t say much, but what they do say spells disaster for direct marketers. And you know us, we are not alarmist.
Section 69 of POPI provides that if you want to send electronic direct marketing to a person to whom you have never sent it before, you have to contact them first to ask for consent. Whether this consent must be an opt in or can be an opt out has been a hotly debated topic (at least in our office). The Regulator was given the power to prescribe what this consent should look like. This is what they came up with:

 

And it goes on…

And on…

And on…(wait, is that an actual signature?)

 
Where to start?  

  • Well, it is two pages long. And yes, direct marketing consents must be substantially similar to this notice.  
  • It is not, not, not in plain language. We don’t think that the notice needs to correspond to this notice verbatim. Suppliers should surely be free to ‘make it their own’ and to find other ways of conveying the additional information in the notice? Please. 
  • It is unclear how this would work with electronic consents. A signature is required. We will look into this, but it may mean that you need an advanced electronic signature.  
  • You must specify which goods or services you are going to market. Does this mean that you are going to have to get consent for each marketing campaign? What if you are not marketing specific goods or services, but the brand? 
  • It looks like you need consent per communication channel. Pity they left out social media. Then again, they require a physical signature, so we are back to the stone age.  
  • This is not in keeping with international best practice. See the UK Information Commissioner’s Office’s Direct Marketing Code (from page 17) for a good example of how direct marketing is regulated. 
  • This is the consent you must use when you start marketing to a new person (i.e. someone you haven’t marketed to before). What about your existing database? POPI has detailed rules about this and they are more important than ever! If your existing database and direct marketing habits don’t comply, you will have to ask your existing base for their consent all over again. And guess how the Regulator wants you to do that…

Is all hope for direct marketers lost? (And, no, they are not all evil!) Not just yet. You have until 7 November 2017 to make submissions. We have already started working on submissions on behalf of some of our clients, so get hold of us now if you need help! Even if that doesn’t work, there is a lot we can do that is ‘substantially similar’…

2018-03-15T10:26:50+00:00 By |POPI compliance|

About the Author:

Elizabeth de Stadler
Elizabeth is the quirky one in the company. She specialises in all things Consumer Law, plain language drafting and designing and delivering training. She prides herself on being slightly out there and bringing a fresh perspective to compliance issues. She has a Masters (cum laude – the nerd) in Consumer Law. Elizabeth met Paul in 2011 and joined Esselaar Attorneys (she is still a senior associate at the firm). In 2013 they founded Novation Consulting together. Elizabeth is a bit of a nerd. She is the editor of the Consumer Law Review (you can get it here for free!) and wrote A Guide to the Protection of Personal Information Act with Paul. She is also the author of Consumer Law Unlocked, a co-author of the hefty Commentary to the Consumer Protection Act and wrote chapters on the Consumer Protection Act in The Law of Contract in South Africa and The Law of Commerce in South Africa. She is currently working with Liezl van Zyl from the Stellenbosch University Language Centre on Plain language legal drafting, which will be published in 2017. Elizabeth loves Lego, sneakers, zombies and white wine. She hates comic sans font, sweet potato and most other attorneys. She is allergic to suits and ‘office shoes’ because of the years she worked at Webber Wentzel. She is very scared of moths. It is a thing – read about it. Want to find out more about Elizabeth? Check her out on LinkedIn. Better yet, contact her on elizabeth@novcon.co.za or (021) 481 8004.