Without Prejudice December 2011
South African laws in the past have always been less strict on
direct emailing than those of the US and Europe.
Prior to the implementation of the Consumer Protection Act 68 of 2008 (CPA) in South Africa, it was legal to send unsolicited emails provided that:
- Recipients were provided with a mechanism to remove themselves from the mailing list as part of the email; and
- Upon request, the recipient was entitled to details of how their information was obtained.
- The CPA has taken regulation of commercial emailing a step further by granting consumers the right to pre-emptively block unwanted direct marketing (of any sort). This right to restrict unwanted direct marketing forms part of the consumer's right to privacy contained under Chapter 2 of the CPA which sets out the "fundamental consumer rights" granted by this piece of legislation.
In addition, a consumer is entitled to demand that any company
that has approached him (other than in person) with a view to
direct marketing, immediately retract such an approach and not
contact him again.
In terms of the CPA, the Consumer Commission may establish, or recognise as authoritative, a registry ("Do Not Contact Register") in which any person may register a pre-emptive block, either generally or for specific purposes, against any communication that is primarily for the purpose of direct marketing.
The primary effect of the CPA on email marketing is therefore the proposed implementation and requirement for adherence to a mandatory "Do Not Contact Register". All senders of marketing emails will need to take cognisance and heed to any pre-emptive block that is registered by a consumer on the "Do Not Contact Register" in order to ensure compliance.
Though the CPA came into full force in April 2011, the execution of this "Do Not Contact Register" is still to be officially awarded to a service provider.
Presently, the Direct Marketing Association of South Africa (DMASA) runs a national opt-out register, and the names on this register are made available to paid-up DMASA members on a monthly basis. So, though it is not the officially recognised register as required by the CPA, for now, this is a good starting point. Having said this, the DMASA will in all probability form the opt-out register required by the CPA, initially based on its existing data and processes.
The registry will need to allow companies who engage in direct marketing to query it electronically on a regular basis. Once an official "Do Not Contact Register" has been established, companies that send direct marketing communications will need to be sure that they do not contact people who have added themselves to this list or have directly requested that all marketing stop, regardless of permissions received through any other means.
There may be technical limitations of the do not contact mechanism, particularly for smaller companies, for example, having to regularly query the database and block sending to these consumers. Email service providers should be able to solve this problem for their clients by integrating with the registry in real time and enforcing the block proactively for all their clients.
In light of the aforesaid restrictions, it is essential for businesses and consumers to differentiate between email subscription services (that is, news and finance update subscriptions) and direct email marketing. Provided that an email subscription service does not fall within the ambit of the definition of "promotion" as given under the CPA, then the delivery of this service via email will not be subject to regulations for direct email marketing under the CPA.
In this regard, the definition of "promote" as dictated by the CPA is extremely wide and will include the advertising, display or offer to supply any goods or services, representations that could reasonably be inferred as expressing a willingness to supply any goods or services or any other conduct that may reasonably be construed to be an inducement or attempted inducement to a person to engage in a transaction.
If the bulk emailing messages fit the description of a "promotion" then in order to comply with the requirements of the CPA, the supplier must:
- Provide the consumers on its database with a reliable and easy to use opt-out mechanism. It is the company's responsibility to ensure that consumer's details are removed from all future direct marketing attempts.
- Once the official "Do Not Contact Register" is available, bulk email systems will need to query this registry on a regular basis and pre-emptively block sending to addresses on this list.
- Only send out email messages in the time periods allowed by regulation
The appointment of service providers should be carefully
considered. Only those with experience and ability to comply should
be taken into consideration for providing bulk email services. They
must have the following business process and systems in place to
assist clients using email as a method of direct marketing:
- The ability to exclude a list of addresses from a list of campaign recipients reliably by comparison against the entire "Do Not Contact Register" and an internal list of previously unsubscribed recipients.
- Reliable and transparent operation of opt-out mechanism.
- Providing a dependable "unsubscribe" link to allow consumers to remove themselves from all future communications without fail.
- Ability to export all opt-outs that occur on email campaigns so that these consumers can be excluded from future direct marketing that utilise other channels like post, SMS or telemarketing.
- Consideration should also be given to implementing processes to cater for a consumer request to be removed from the list (instead of using the unsubscribe mechanism supplied) to ensure they can be reliably removed.
- Data collection points or electronic contact forms need to include an option for the consumer to accept or reject subscription to future communications and/or marketing.
In order to ensure brand protection, email marketing must be
conducted in line with the requirements of the CPA.
In this day and age, particularly in South Africa where infrastructure is not reliable and/or some cases non-existent, email and SMS as a manner of communicating offers has many benefits for consumers and suppliers.
Consumers should, therefore, be aware that by opting out this may well prevent them from receiving information that they may really like to have, therefore, cutting them off from relevant and worthwhile opportunities.