Killing spam softly: POPI in South Africa

When the Protection of Personal Information Bill (POPI) is promulgated in South Africa, it will effectively outlaw sending electronic marketing messages before getting the express up-front permission of recipients.

This is according to Dr Tobias Schonwetter, director of UCT’s intellectual property unit in the Faculty of Law, who explained that POPI adopts a stricter stance on spam without outlawing all direct marketing.

Under the existing Electronic Communications and Transactions (ECT) Act 25 of 2002, and the Consumer Protection Act (CPA) 68 of 2008, “direct marketing” without prior consent is legal so long as recipients are given the ability to “opt-out”.

POPI, on the other hand, will change South Africa’s position on spam to a “soft opt-in” approach, Schonwetter explained.

Opt-in? Opt-out?

This means that right now it is legal for direct marketers to spam you until you specifically ask them to stop (opt-out). Schonwetter explained that when POPI kicks in direct marketers may not contact you electronically unless you have specifically consented to it (opt-in), or if you are an existing customer of the direct marketer.

Schonwetter outlined the following scenarios under POPI that allow direct marketers to contact you:

  • The direct marketer obtained the client’s contact details in the context of a previous sale,
  • the purpose of the direct marketing pertains to a similar product or service, and
  • the client has been given the opportunity to opt-out of such communication and has not made use of it.

Some call this approach a “soft opt-in”, Schonwetter said.

“It is important to note that direct marketers may approach a new customer once to obtain the required consent for sending direct marketing messages,” Schonwetter said.

Tobias Schönwetter by Paul Scott
Tobias Schönwetter by Paul Scott

Brilliant! When does POPI become law?

POPI has not been enacted yet, but Schonwetter said that it has been passed by the National Council of Provinces after amendments to the bill were proposed, discussed, and adopted.

Schonwetter explained that it has now been sent back to the National Assembly where the proposed amendments to the Bill will be considered.

It is expected that the National Assembly will meet to consider the Bill in Q3 2013.

“Currently none of the proposed amendments to the Bill affect section 69,” which contains the new provisions on electronic spam, Schonwetter said.

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Killing spam softly: POPI in South Africa