Cold call crackdown in South Africa

South Africa’s Information Regulator will soon take decisive action against direct marketers contravening the Protection of Personal Information Act (POPIA) through spam calls.

Information Regulator chair Pansy Tlakula told 702 that the watchdog is finalising the publication of a guidance note which effectively says telemarketing amounts to electronic communication and must adhere to POPIA.

She said the organisation held a meeting to engage with players in the sector, where most argued that telephonic direct marketing doesn’t constitute electronic communication.

They argued that telephonic messages are transmitted immediately and are not stored in the network or the device of the recipient until it is received.

“We did research, and we were assisted by IT experts. We came to the conclusion that as far as the regulator is concerned, a telephone call is an electronic communication,” said Tlakula.

Therefore, direct marketing via telephone calls must comply with the Personal Protection of Information Act (POPIA).

“The first telephone call that you receive from a marketer should be a message in which they ask for your consent to receive direct marketing messages,” said Tlakula.

“If you say yes, they can send you direct marketing messages. If you say no, I’m not interested, they should stop, and they should put you in a database of people who have said no.”

She said the Information Regulator has received several complaints, but they must follow a process before they can enforce POPIA on spam callers.

“We have a number of complaints on direct marketing through telephones. As a responsible organisation we wanted to consult the sector and inform them about our position before we apply it,” she said.

“We are in the process of finalising that. Once we publish that guidance note, then we’ll deal decisively with direct marketing telephone calls.”

“We know that this is a contentious issue that may end up in court, but that is a fight we are prepared to take to its logical conclusion,” Tlakula added.

According to Tlakula, the volume of direct marketing-related complaints the regulator receives shows that it is near the top of the list of causes of public annoyance.

The Information Regulator completed the direct marketing guidance note for public comment in February 2024. Once officially published, offenders could face hefty fines if they don’t comply.

“Following receipt of a complaint on direct marketing, we would conduct an investigation, which may be followed by an enforcement notice,” the watchdog told MyBroadband.

However, it added that it may also carry out a section 89 assessment on its own initiative or by request, followed by an assessment report.

“The Assessment Report is equivalent to an enforcement notice,” the Information Regulator stated.

“Should the responsible party fail to adhere to the instructions in an enforcement notice, this may result in us issuing an infringement notice which carries a fine of up to R10 million and/or imprisonment.”

It issued its first offender — FT Rams Consulting — with an enforcement notice in February. The regulator had received a complaint about the firm’s direct marketing from an individual who had received countless direct marketing messages.

“Regardless of the multiple attempts to opt out and requests to be removed from the company emailing list, FT Rams Consulting blatantly ignored the pleas from the data subject and continued to send them marketing messages via email,” it stated.

It instructed FT Rams Consulting to stop sending direct marketing messages via electronic communication if consent hasn’t been received.

It must ensure that the first communication they send to individuals requests consent. It can only approach each individual once to ask for permission.

The Information Regulator gave FT Rams Consulting 90 days to comply with the instructions and provide proof of its compliance or face a fine of R10 million or jail time of up to 10 years.

It is unclear what the outcome was as the 90-day period has since passed.

The Information Regulator recently told MyBroadband that it has its sights on several other offenders.