Bad news for spam callers in South Africa

Minister of Trade, Industry, and Competition Parks Tau has proposed an amendment to the Consumer Protection Act (CPA) that calls for the creation of a national opt-out registry to combat spam calls in South Africa.

While there is already a national opt-out database run by the Direct Marketing Association (DMA), it only protects registered users against members of its organisation.

The proposed registry will be government-run and allow users to register a pre-emptive block, barring all communication from direct marketers.

“South African consumers are constantly exposed to intrusive marketing, and this has significantly increased over the years,” the Department of Trade, Industry, and Competition (DTIC) said in a statement on Friday.

“With the Opt-Out Registry, direct marketers must be registered and should ensure that when contacting any consumer for direct marketing, they do not contact any consumer that has registered a pre-emptive block on the Opt-Out Registry.”

To comply with the amended CPA, direct marketers must annually register on the opt-out registry and ensure that this information stays up to date.

They will need to remove all registered users from their database by “cleansing” their database and will also be prevented from advertising to South Africans without identifying where it originated.

Therefore, they will need to ensure that the recipient of the marketing communication can identify their company’s name, physical and electronic address, and contact number.

The current sanctions for contravening the CPA include fines, imprisonment for 12 months, or imprisonment for ten years for disclosure of private information.

The proposed amendments are open to public comment for 45 days from 28 October.

However, to register on the opt-out database, citizens will also need to submit a form requiring private information, for which the DTIC will be responsible for safekeeping.

This pre-emptive opt-out registry will be particularly useful to combat a loophole within South Africa’s Protection of Personal Information Act (Popia).

This loophole exploits the rule that telemarketers must request consent to market to a citizen on their first call to that individual. 

However, no regulation specifies a limit to how many times telemarketers can call to request consent.

Therefore, telemarketers could spam call South Africans to request consent if they don’t answer these calls.

Another problem the Information Regulator previously said it faced regarding direct marketing was a lack of complaints.

It said some individuals were under the false impression that they could receive a financial reward for lodging a complaint.

When they realise there is no reward, they often abandon their complaints.

It can also be challenging to file a complaint because people often don’t have enough information about the direct marketers who contacted them.

Regarding the convenience of lodging complaints, the Information Regulator said it is developing a complaints management system to make the process efficient and seamless.

As for the lack of information about direct marketers, the DTIC’s plan to force them all to register could help address that issue.

Despite these challenges, the Information Regulator recently revealed that it had received 135 complaints since April and 187 complaints during the previous financial year.

It also does not rely solely on complaints to launch investigations.

The Information Regulator said it may also carry out a section 89 assessment on its own without a complaint or by request, which will be followed by an assessment report.

Such an assessment report is equivalent to an enforcement notice, which lays out the corrective steps a party must take.

Should they not take the necessary steps, the watchdog may impose punitive measures.

In February 2024, the Information Regulator issued a direct marketing guidance note for public consultation that designates telemarketing as a form of electronic communication that must be regulated under Popia.

However, the regulator told MyBroadband that it is finalising this guidance note outlining how companies may use telemarketing to conduct their business.