Telemarketing in South Africa: Navigating the POPIA landscape

Telemarketing in South Africa is under the microscope, and let’s be real, we’re all (at least a bit) tired of spammy calls and emails. Enter the Information Regulator (IR), with a new viewpoint that’s got everyone talking.

The lines around what’s allowed under section 69 “Direct marketing by means of unsolicited electronic communications” of the Protection of Personal Information Act 4 of 2013 (POPIA) have been quite blurry and open to interpretation. And although some say that section 69 includes telephone calls, most people have understood the section to exclude it … until the IR announced its latest eyebrow-raising stance – that a telephone call is a form of electronic communication. (Keep an eye out for the IR’s guidance note on direct marketing, which will explicitly say that telephone calls are electronic communication.) The impact of this decision is that, for a marketer to do direct marketing through telephone calls, they must first get opt-in consent.

‘Electronic communication’ contains three elements. It has to be:

• a text, voice, sound or image message;
• sent over an electronic communications network; and
• stored in the network or in the recipient’s terminal equipment until the recipient collects it.

While most are happy with the first two elements, the third one is quite tricky. What does it even mean to be “stored in a network until it’s collected”? No wonder that this issue has been debated back and forth over the past few years and that the IR had to step in to clarify things (can you see clearly now?).

The law is the law; and guidance notes are, well, notes that cannot change the law and that are meant to guide you (after all it’s just a “guidance note”). So, when the IR releases a guidance note saying that a phone call is an electronic communication, is this even binding? And, yes, maybe telephone calls should have been included in POPIA’s definition of direct marketing, but they weren’t. That’s why we think this will likely end up in court for a declaratory order on whether ‘electronic communication’ includes a telephone call.

In the meantime, what can you do? When the IR releases its guidance note for comments, and you do or don’t see eye to eye with the IR’s take on telephone calls, have a crack at it and send in your comments.

On 21 February 2024, FT Rams Consulting received an enforcement notice from the IR because they did not:

• stop their marketing messages when asked to; and
• get explicit consent before sending their marketing messages.

The IR’s Advocate Pansy Tlakula, said they were getting tough on unsolicited marketing, but what is so unusual about this enforcement notice is that the IR mentioned telephone calls, which FT Rams Consulting does not use to contact people. They said, “FT RamsConsulting must use the form prescribed by the Regulator for this purpose. The use of this form is compulsory.”

That’s quite a statement! Apart from the length, use of legalese, and complete disregard for user experience, the prescribed form that companies must use to get consent doesn’t even mention the telephone as a communication option. Can you imagine sitting through a call where the caller reads out that long and dreary form? Also, how many people would lose their jobs after everyone opts out? Seriously?

Because it’s clear that the IR is seriously looking at direct marketing, direct marketers should keep an eye out for the invitation to comment on the guidance note before it’s too late.

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