Telemarketers in South Africa are required to obtain consent from individuals during their initial contact, as mandated by the country's regulations. However, there is no specified limit on how many times telemarketers may call to request this consent.
This loophole potentially allows telemarketers to repeatedly attempt to reach individuals until they secure consent, raising concerns about the potential for excessive or intrusive calls. Pansy Tlakula, Chairperson of the Information Regulator, acknowledged during a media briefing on 11 September 2024, that current legislation does not prevent telemarketers from persistently calling individuals.
“The key issue is that the first call should be for obtaining consent. It's essential that the public is educated about this requirement,” Tlakula emphasized. She further noted that if a telemarketer proceeds to market products or services without obtaining consent, it is the responsibility of the recipient to inform the caller of their obligation to request consent first.
Tlakula also highlighted issues with the "unsubscribe" or "opt-out" features provided through direct marketing SMS or emails, describing them as ineffective. Based on her personal experience, she stated, "Even after clicking 'unsubscribe,' I continued receiving the same messages the following day, indicating that the system does not work effectively."
In February 2024, the Information Regulator issued a guidance note on direct marketing for public consultation, identifying telemarketing as a form of electronic communication that must comply with the Protection of Personal Information Act (POPIA). Violations of this act could result in fines of up to R10 million or imprisonment.
The Regulator clarified that any complaint regarding direct marketing could lead to an investigation, potentially followed by an enforcement notice. Additionally, it may conduct assessments under Section 89 of the act. Non-compliance with enforcement notices may result in further legal actions, including fines or imprisonment.
In late February 2024, the Information Regulator issued an enforcement notice to FT Rams Consulting for failing to comply with unsubscribe requests, though not for making unsolicited calls. The company was found in violation of various sections of POPIA after ignoring multiple opt-out requests from a data subject, who continued receiving marketing communications despite repeated attempts to be removed from the company's mailing list.
Following an investigation, the Regulator determined that FT Rams Consulting had violated the data subject's rights under POPIA by not safeguarding their personal information. The company was instructed to cease sending unsolicited marketing messages and was given 90 days to demonstrate compliance with the Regulator's orders. Failure to comply could result in a fine of up to R10 million or imprisonment for up to 10 years.
The outcome of this case, however, has yet to be disclosed.
Is your interaction strategy compliant with Privacy Legislation like PoPiA?..
...Failure to comply could result in a fine of up to R10 million
or imprisonment for up to 10 years!
