Spam law can’t protect South Africans from phone marketers

By Myles Illidge for MyBroadband

South Africa’s Protection of Personal Information Act (POPIA) doesn’t protect you from marketers who contact you telephonically unless you explicitly tell them to stop calling you.

This is because POPIA doesn’t include phone marketing in its definition of unsolicited electronic communication.

“The law prohibits direct marketing through unsolicited electronic communication,” Information Regulator chair Pansy Tlakula said during an interview with 702.

“Electronic communication is defined [as] a text, a voice, a sound, or an image that is transmitted over electronic communications networks, which is stored in the network or the recipient’s equipment.”

“Direct marketing messages through a telephone do not fall within this definition because a telephone is not an electronic communications device in terms of the Protection of Personal Information Act,” Tlakula added.

She explained that when it comes to telemarketing campaigns, the call recipient must object. Once they have objected, the telemarketer cannot contact them again.

“The telemarketer must approach the data subject only once for the purpose of obtaining his or her consent.”

“If that person had been approached before and they declined to be approached again, they should not be approached again.”

Tlakula explained that, in some situations, the telemarketer may have derived the subject’s contact information from public records.

However, to facilitate contact tracing during the Covid-19 pandemic, South Africans have been required to write down their phone numbers when entering venues.

Asked whether telemarketers could use those contact details to make sales calls, Tlakula said the contact tracing forms are not considered public records. If companies used them, they would violate POPIA.

She said examples of public records are the Chartered Institute of Procurement & Supply and the deeds registry.

She added that any numbers loaded publicly on social media are also considered public records.

Tlakula explained the procedure for addressing telemarketers that continue to call, despite being told to stop.

She said that it is vital to record the contact numbers and names of such telemarketers so you can submit a request for the company to stop calling you if they don’t cease calls after you told them telephonically.

This is because South African law specifies that telemarketers have to disclose from where they are contacting you.

Tlakula said you should submit the details of the telemarketer to the Information Regulator if they continue to harass you with calls after submitting a request for them to stop.

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