12 February 2018 |  by Natalie Luck
In light of the new Protection of Personal Information Act 4 of 2013 (POPI) the legal position in relation to direct marketing has been altered. Although POPI is not yet in full force and effect it is important that businesses begin implementing measures and raising awareness to ensure compliance now, before the Regulator begins enforcing the provisions.
What was the position prior to POPI?
In terms of the Consumer Protection Act 68 of 2008 (CPA) you are entitled to market your product or services to clients directly until they elect to opt out. It is not a requirement to obtain permission from the client to contact them for marketing purposes be it via SMS, E-mail or telephone etc. However, should the client opt out then no further communications with the client are allowed.
What does POPI change?
Once POPI comes into effect fully both POPI and the CPA will seek to regulate direct marketing together.
POPI differs from the CPA in that it requires that clients opt in before direct marketing can take place. Permission will need to be obtained from the client before marketing. In the event of existing clients, the opt out option under the CPA is still required.
Furthermore, POPI strictly regulates how the information of the client (which the consumer has given permission to utilise) is managed:
The details of the client must have been obtained in the context of the sale of the product or services concerned;
The information may only be used for direct marketing relating to your own or similar product or service for which it was collected;
The client must be given the reasonable right to object at the time when information is collected as well as from time to time when direct marketing communication is sent.
Many companies rely heavily on direct marketing in the course of their business which include those in the property business such as Estate Agencies and Banks. As POPI is not yet in full force you may use the time now to implement and fine tune measures for compliance with its provisions. It is advisable to obtain new clients ‘opt in’ consents in writing by having them sign a standard form which you may retain for future records. You will also need to ensure that the opt out clause is included in your currently direct marketing practices for existing clients, records of these clients that have elected to opt out will need to be retained.
Also, don’t forget that POPI does more than just regulate direct marketing. It also contains important provisions relating to the storage of client’s personal information. You will need to consider these provisions when retaining the personal information of all clients to ensure that it is kept safe in line with the requirements under POPI. It is recommended that you consult an attorney, who is best equipped to advise you whenever in doubt.
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