Protection of your Personal Information – POPI
Protection of information can be looked at from two sides. First, from the perspective of the individual: we are all on someone’s contact list.
The result is potentially many text messages or e-mails wanting to sell us something or other.
When we receive these we tend to want them dealt with immediately and do not think of a long term solution to the annoyance. There is a more permanent solution to stop receiving all these emails.
Secondly, from the perspective of the company, the information is collected when you conclude certain agreements with consumers and you would like to ensure that the marketing you put out reaches the correct audience.
Direct marketing is the perfect way to tailor the marketing to the specific individual.
The first thing to consider is how the person contacting you acquired your information.
When you give out your information the service provider you have approached is required to ask you if you would like to receive other marketing from the company or their associated companies.
There are often benefits to ticking the ‘yes’ box. They often offer points or preferential deals if you tick the ‘yes’ box.
In order to achieve this balance of direct marketing while remaining within the parameters of the law, we must have a closer look at the Protection of Personal Information Act (POPI).
Protection of Personal Information Act – POPI
Protection of personal information is primarily regulated by the POPI. Other Acts which also play a role in the regulation of direct marketing practices are the Consumer Protection Act (CPA) and the Electronic Communications and Transaction Act (ECTA).
In the POPI Act reference is made to the ‘data subject’, this is the person whose personal information is being used.
Reference is also made to the ‘responsible party’; this is the company, person or service provider who is considering the use of the personal information.
The most applicable section to this situation is Section 69 of POPI.
Section 69 deals with direct marketing by means of any form of electronic communication, including automatic calling machines (a machine that is able to do automated calls without human intervention), facsimile machines, SMSs or e-mails.
POPI and Direct Marketing rules
There are two instances in which direct marketing is permitted:
The first is when the person has given consent, and the second is when the person is a customer of the company using the data.
Section 69 further requires that the responsible party may approach the data subject to obtain consent to use their information.
However there are conditions to this: the person being approached must have met the first requirement and must not have previously withheld their consent.
It is important to note that each new customer has to expressly consent to the use of their information.
The responsible party may not have a general policy that all information of new clients will be used unless the specifically opt out.
There are requirements as to when and why the data was collected. The data must have been collected in the context of the sale of a product or service.
This data can then be used to market similar products or services. The data subject must have been given a reasonable amount of time to object to the use of the data when it was collected and must be allowed another opportunity to object each time the company communicates with the data subject.
Opt-Out and Unsubscribe – POPI
If you have a close look at the emails and SMSs you receive you will notice an ‘opt out’ phrase.
On an SMS it would usually be a word or phrase you would have to text to a number and in an e-mail there would usually be a unsubscribe link which will take you to a webpage in order to remove yourself from their mailing list.
There is also certain information that must be included in the communication. The sender of the communication must identify who they are and they must include an address or other contact details where to request to cease communication.
Having a good system in place to correctly use the acquired data can help maximise the marketing and advertising of a company while ensuring that they operate within lawful bounds.
For the consumer, direct marketing has the benefit of showing them the variety of products in which they have shown an interest.
