POPIA and Direct marketing
Jeroen Seynhaeve 2021-06-14
When you contact people in person, or by mail, or by any form of electronic communication (including automatic calling machines, fax, SMS, or email) to promote a product or service, POPIA’s special “direct marketing” rules apply.
In broad terms, you may electronically market your services and products to people that have consented and to existing customers. To get consent, you may approach people once – assuming they have not objected before.
However, these broad terms must be fine-tuned to remain within POPIA’s requirements. Just like every other time you collect personal information, you must notify the person you collect information from with the information required by Section 18 POPIA.
In addition, you may market services and products only to:-
- people that have explicitly consented to receive direct marketing messages from you, but only for as long as they have not withdrawn that consent. View Form 4; or
- existing customers, if these customers have shared contact details in the context of a sale and are given the opportunity to unsubscribe, but only for similar products or services that these customers have bought from you.
Every direct marketing message must include:
- a reasonable opportunity to object (“unsubscribe”)
- the identity of the sender
- contact details of the sender
Definitions
Definition: “direct marketing
“direct marketing” means to approach a data subject, either in person or by mail or electronic communication, for the direct or indirect purpose of—
(a) promoting or offering to supply, in the ordinary course of business, any goods or services to the data subject; or
(b) requesting the data subject to make a donation of any kind for any reason;
Definition: “electronic communication
electronic communication” means any text, voice, sound or image message sent over an electronic communications network which is stored in the network or in the recipient’s terminal equipment until it is collected by the recipient.
Definition: Section 69
Direct marketing by means of unsolicited electronic communications
- (1) The processing of personal information of a data subject for the purpose of direct marketing by means of any form of electronic communication, including automatic calling machines, facsimile machines, SMSs or e-mail is prohibited unless the data subject—
(a) has given his, her or its consent to the processing; or
(b) is, subject to subsection (3), a customer of the responsible party. - (2) (a) A responsible party may approach a data subject—
(i) whose consent is required in terms of subsection (1)(a); and
(ii) who has not previously withheld such consent, only once in order to request the consent of that data subject.
(b) The data subject’s consent must be requested in the prescribed manner and form (Form 4). - (3) A responsible party may only process the personal information of a data subject who is a customer of the responsible party in terms of subsection (1)(b)—
(a) if the responsible party has obtained the contact details of the data subject in
the context of the sale of a product or service;
(b) for the purpose of direct marketing of the responsible party’s own similar products or services; and
(c) if the data subject has been given a reasonable opportunity to object, free of charge and in a manner free of unnecessary formality, to such use of his, her or its electronic details—
(i) at the time when the information was collected; and
(ii) on the occasion of each communication with the data subject for the
purpose of marketing if the data subject has not initially refused such use. - (4) Any communication for the purpose of direct marketing must contain—
(a) details of the identity of the sender or the person on whose behalf the communication has been sent; and
(b) an address or other contact details to which the recipient may send a request that such communications cease. - (5) “Automatic calling machine“, for purposes of subsection (1), means a machine that is able to do automated calls without human intervention.