Page 41 - Q&A.indd

The Protection of Personal Information Act 4 of 2013 (“POPI”), which aims
to protect the privacy of consumers and their personal information, has
been signed into law, but is not yet fully in operation. POPI will alter the
legal position in relation to direct marketing practices in South Africa, as it
will repeal the sections of the ECTA relating to direct marketing and both
the CPA and POPI will apply to the various facets of direct marketing.

POPI will apply to all direct marketing that takes place by electronic
means, which includes communication by way of automated calling
machines, facsimile machines, SMS or e-mail. However, POPI will not
apply to direct marketing that takes place by non-electronic means,
such as by registered post, the handing out of flyers and telephone calls Commercial
etc. which will still be governed by the CPA.
POPI distinguishes between existing customers and new customers
when considering the requirement to obtain consent for direct marketing
practices. As a general rule, opt-out consent will be required for existing
customers while opt-in consent will be required for new or prospective
customers.

Therefore the position in relation to your direct marketing practices will
be as follows once POPI comes into operation:

• The handing out of flyers will be governed by the CPA and you
will be entiled to distribute these to consumers until a potential
client elects not to receive them again, at which point you
will have to keep a record of the consumer’s refusal and refrain
from contacting them again.This position will also apply to
telephone calls and communication via post or in person.
• Sending SMS’s, e-mails and other electronic communication
to potential clients will require these persons to first consent to
these communications being sent as required by POPI, before
you may contact them.
If your business engages in direct marketing practices that makes use
of electronic communications, it may be necessary to approach a legal
specialist to assist you with the drafting of proper consent forms, notices,
privacy policies and e-mail banners, in order to ensure that your direct
marketing practices are in line with POPI.

35