Spam law fails to protect South Africans from phone marketers

The South African Personal Information Protection Act (POPIA) does not protect you from marketers who contact you by phone unless you expressly prevent them from calling you.

This is because POPIA does not include telephone marketing in its definition of unsolicited electronic communications.

“The law prohibits direct marketing through unsolicited electronic communications,” said Pansy Tlacula, chairwoman of the information regulation department, during interview from 702.

Electronic communication is defined [as] text, voice, sound or image transmitted over electronic communications networks stored on the recipient’s network or equipment.

“Direct marketing messages over the phone do not fall under this definition because the phone is not an electronic communication device under the Personal Information Protection Act,” Tlacula added.

She explained that when it comes to telemarketing campaigns, the recipient of the call should object. After they object, the telemarketer cannot contact them again.

“The telemarketer should contact the data subject only once for the purpose of obtaining his or her consent.”

“If this person has been approached before and he refuses again, he should not be approached again.”

Tlacula explained that in some situations, the telemarketer could have obtained the subject’s contact information from publicly available records.

Pansy Tlacula
Pansy Tlakula, Chairman of the Information Regulator of South Africa

However, to facilitate contact tracing during the Covid-19 pandemic, South Africans have been required to write down their phone numbers when entering events.

Asked if telemarketers can use these contact details to make sales calls, Tlakula said contact tracing forms are not considered public records. If companies were to use them, they would violate POPIA.

She said that examples of public records were the Chartered Purchasing and Supply Institute and the register of transactions.

She added that any numbers posted publicly on social media are also considered public records.

Tlakula explained the procedure for contacting telemarketers who keep calling despite being told to stop.

She said it is very important to write down the contact numbers and names of such telemarketers so that you can submit a request to the company to stop calling you if they do not stop calling after you told them on the phone.

This is because, under South African law, telemarketers are required to disclose where they contact you from.

Tlakula said that you must provide information about the telemarketer to the Information Regulator if they continue to harass you with calls after filing a request to stop them.

Now read: Vodacom spends more than a billion rand annually to solve its biggest problem