The Information Regulator’s Guidance Note on Direct Marketing under the Protection of Personal Information Act (POPIA) has sparked debate in the direct marketing sector. A key point of contention is whether telephonic calls fall under the definition of electronic communication. Some argue this interpretation conflicts with POPIA and is therefore not legally binding.
However, the Guidance Note makes the Information Regulator’s stance clear – prior consent is required before engaging in direct marketing, including telephonic calls.
For businesses involved in direct marketing, this raises an important question: What is the best course of action? The Guidance Note offers practical guidance on handling personal information and introduces stricter requirements for direct marketing practices. Here’s what businesses need to know to navigate this evolving regulatory landscape effectively.
The Purpose of the POPIA Guidance Note on Direct Marketing
The Guidance Note was issued in response to consumer complaints about unwanted marketing communications, including spam emails, unsolicited SMS messages and excessive phone calls. Its aim is to help businesses align their direct marketing practices with POPIA by emphasising the importance of obtaining explicit consent from consumers.
Moreover, it underscores the regulator’s commitment to ensuring ethical marketing practices that respect privacy.
What’s New for Direct Marketing?
A significant aspect of the Guidance Note is the inclusion of telephonic calls under electronic communication. This means telephonic marketing requires prior consent, according to the Information Regulator.
This interpretation has sparked debate within the direct marketing industry, with some arguing that POPIA does not explicitly classify telephone calls as electronic communication. This disagreement has created uncertainty about the enforceability of the Guidance Note, but it highlights the regulator’s intent to prioritise consumer privacy.
Challenges – and Opportunities
For businesses that rely on direct marketing, the Guidance Note introduces both challenges and opportunities.
On the one hand, stricter requirements for obtaining and managing consent may require additional resources and adjustments to existing processes.
On the other, by adhering to these guidelines, businesses that do direct marketing can differentiate themselves from others in the market. Respecting clients’ privacy and preferences fosters trust and loyalty, which are invaluable in a competitive environment.
What Steps Should Direct Marketers Take?
To align with the Guidance Note and adopt ethical marketing practices, they should:
- Obtain Consent: Use the prescribed Form 4 or an equivalent to secure explicit consent for telephonic and other forms of electronic communication. If a direct marketer is obtaining consent via a telephone call, they must read out Form 4, or an equivalent, and the call must be recorded. It’s also important to note that they need to obtain consent before sharing direct marketing material with a potential client.
- Maintain Accurate Records: Keep a comprehensive database, for example, a consent register, of clients who have opted in or out of marketing communications, ensuring no further contact with those who have objected.
- Audit Communication Policies: Review and update current marketing practices to ensure compliance with POPIA and the Guidance Note, particularly regarding unsolicited communications.
- Train Your Staff: Ensure that your team is well-versed in the requirements outlined in the Guidance Note and understands how to follow the correct processes. Staff training on POPIA and ethical marketing practices is essential to ensure compliance and minimise mistakes.
Best Practices and Why It’s Good for Business
While POPIA does not explicitly define telephonic communication as electronic communication, the Information Regulator’s Guidance Note treats it as such, emphasising the need for prior consent.
In addition, the Guidance Note’s principles represent best practice, and adhering to them helps businesses minimise complaints and reputational risks.
It also demonstrates a commitment to ethical and client-centred marketing practices. When clients know their privacy is respected, they’re more likely to trust a business. Moreover, in a competitive market, where consumers increasingly value ethical behaviour, transparent and consent-driven marketing practices set a business apart.
Adjusting to the Guidance Note’s requirements may take effort, but it’s also an opportunity for a business to refine its marketing approach. By prioritising consent-driven communication and respecting clients’ privacy, it can build stronger, more enduring relationships.
Embracing Ethical Marketing and Avoiding Enforcement Fines
The Information Regulator’s Guidance Note sets a new standard for ethical direct marketing. Businesses should embrace this shift toward client-centred practices, as it fosters trust and loyalty.
Whether the interpretation of telephonic marketing under POPIA holds up legally or not, aligning with the Guidance Note positions a business as a leader in responsible marketing and will help it to stay clear of a Section 89 Assessment or possible fines.
Moreover, the Information Regulator has made it clear that consumer rights take precedence. Last year in February, in its first enforcement notice on direct marketing, it stated: “Leniency regarding direct marketing through unsolicited electronic communications is going to be a thing of the past because responsible parties (public or private bodies) ignore the provisions of Section 69 of POPIA and infringe on the rights of data subjects.”
Notably, this enforcement explicitly included telephone calls, alongside email, SMS, fax, and automated calling systems. The company in question was ordered to immediately cease all unsolicited direct marketing to individuals who had not provided consent. Failure to do so could result in a fine of up to R10 million or imprisonment for a period not exceeding 10 years, or both, the regulator warned.
This sets a strong precedent – businesses that fail to align with the Guidance Note risk not only reputational damage, but also penalties.
