Fight against annoying spam calls in South Africa

South Africa’s Information Regulator has its sights set on tackling annoying spam calls in the country. It decided that telemarketing amounts to electronic communication and must be regulated under the Protection of Personal Information Act (POPIA).
The watchdog is actively cracking down on spam callers in South Africa and issued its first offending firm, FT Rams Consulting, with an enforcement order in February 2024.
Information Regulator chair Pansy Tlakula has taken personal issue with spam callers in the country.
The issue isn’t that companies make calls for marketing purposes but that they must first obtain consent from an individual to market to them when they make the first call.
However, this isn’t happening, with many telemarketers spamming people with phone calls, even if they have declined the communication.
“If you decline the communication, they should stop, but they don’t stop,” said Tlakula, adding that she, too, is getting frustrated with the situation.
To address the situation, the Information Regulator published a direct marketing guidance notice that adds a telemarketing clause within Section 69 of POPIA.
Tlakula said she expects telemarketing companies to fight the changes in court.
“The rules are very clear, but I think with direct marketing, my sense is that we’ll probably end up being in court,” said Tlakula.
“They will wait for the time when there is a complaint, and once we decide against them, they’ll probably take us on review and the issue of whether a telephone is electronic communication or not will come to the fore.”
The Information Regulator issued FT Rams Consulting with an enforcement notice under the new regulations in February 2024.
“This enforcement notice is a result of our investigation into complaints about direct marketing,” said Information Regulator senior manager for communications Nomzamo Zondi.
She said the watchdog had identified 14 other potential offenders and that it plans to issue enforcement notices.
Failure to comply with an enforcement notice can result in hefty consequences, including a fine of up to R10 million and jail time.
“Following receipt of a complaint on direct marketing, we would conduct an investigation, which may be followed by an enforcement notice,” the Information Regulator explained.
“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.”

Major consent loophole
While the Information Regulator wants telemarketers to follow the regulation that they must first get consent to market to an individual via a telephone call, there is a major loophole: no regulation specifies how many times a telemarketer can request consent.
As a result, telemarketers could spam call South Africans to request consent if they don’t answer these calls.
During a media briefing in September 2024, Tlakula admitted that no rule prevents telemarketers “from calling you until they find you”.
“What is important is that that first call should be for obtaining your consent. Members of the public have to be educated on that,” she said.
She explained that, when a telemarketer calls an individual for the first time and immediately attempts to sell products or services, it is the recipient’s responsibility to confront them about not getting consent.
However, she also noted that, from her own experience, using the “unsubscribe” or “opt-out” links sent via direct marketing SMSes or emails is futile.
“Try to click on unsubscribe. I will tell you the following day you will receive the same message. It means the system is not working,” said Tlakula.
“I have personal experience of clicking unsubscribe, but all the time, I keep on receiving messages from companies I have unsubscribed from.”