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Direct marketers body studies InfoReg’s latest classification

Simnikiwe Mzekandaba
By Simnikiwe Mzekandaba, IT in government editor
Johannesburg, 01 Mar 2024
The direct marketing industry body will study the telemarketing classification by the Information Regulator.
The direct marketing industry body will study the telemarketing classification by the Information Regulator.

The Direct Marketing Association of Southern Africa(DMASA) is studying the Information Regulator’s decision on the classification of electronic communication as it pertains to telemarketing, it says.

At last week’s ITWeb Governance Risk and Compliance 2024 conference, advocate Pansy Tlakula, chairperson of the Information Regulator, said her office has completed the direct marketing guidance note that telemarketing by telephone constitutes electronic communication.

The note, to be put out for public consultation, is aimed at guiding the direct marketing sector on how to deal with direct marketing in compliance with the Protection of Personal Information Act (POPIA), revealed Tlakula.

It forms part of the regulator’s efforts to address data subjects’ frustrations with unsolicited direct marketing phone calls and messages.

While some data privacy lawyers have chimed in on what this decision potentially means for the telemarketing industry, DMASA has been mum, up until now.

In a statement, the direct marketing industry body says it acknowledges the importance of compliance with regulations governing telemarketing practices, given the increasing focus on data privacy and consumer protection.

Furthermore, it is committed to promoting ethical and responsible marketing practices among its members and ensuring alignment with regulatory requirements, it says.

“We support compliance and urge all DMASA members to prioritise POPIA compliance,” says David Dickens, CEO of DMASA. “Our focus is on proactive measures to safeguard our members' interests, while increasing industry awareness of data protection regulations.”

According to DMASA, having previously sought legal opinions on telemarketing's classification as electronic communication under POPIA, it will continue to seek legal advice to ensure members comply with regulatory requirements and uphold consumers' privacy rights.

“DMASA aims to enhance clarity and mutual understanding of compliance issues, benefiting consumers, marketers and the industry at large.”

The Information Regulator, which is headed by Tlakula, is mandated to ensure organisations put measures in place to protect the data privacy of South Africans under POPIA.

Acting on its decision, the information watchdog this week issued its first enforcement notice as a result of a direct marketing complaint. The notice was issued against training institutionFR Rams Consulting following findings it violated various sections of POPIA.

The regulator found that FR Rams Consulting violated section 69 of POPIA, which regulates direct marketing by means of unsolicited electronic communications.

In addition, the consulting firm has been ordered to adhere to the instructions contained in the enforcement notice and demonstrate such to the regulator within 90 days of receipt of the notice.

The InfoReg decided telemarketing by telephone constitutes electronic communication.
The InfoReg decided telemarketing by telephone constitutes electronic communication.

Speaking to ITWeb about the Information Regulator’s move to take a stance against telemarketers, Lucien Pierce, technology lawyer and director at PPM Attorneys, notes there’s a need for clarity on what telemarketers can and cannot do when conducting direct marketing.

“I think it is good that the IR [Information Regulator] has focused on this and I’m hoping, ultimately, that this space will be better regulated, with everyone having more clarity on what their rights are regarding direct marketing from telemarketers.”

Pierce further contends the regulator’s move is a bold one. “I think the regulatory uncertainty has emboldened direct marketers, particularly those unscrupulous ones who disregard people’s pleas to be removed from their databases. I think it will serve as a wake-up call to those cavalier direct marketers who blatantly take advantage of these ‘loopholes’ and may result in them treading a little more carefully.

“It is also significant because, as much as the path to obtaining regulatory certainty may entail a bit of a winding path (think court cases or a lengthy legislative amendment process), ultimately people’s right to be left alone will be improved and respected.”

Like the information watchdog’s chairperson – who foresees a legal hurdle ahead as result of the decision on telemarketing classification – Pierce believes there will be strong push back from marketing firms, particularly those involved in direct telemarketing.

“Closing off or reducing the ease with which this method of marketing can be used will have consequences for their bottom lines, so I don’t see them going gently into that good night.

“I think that, as much as it’s my view that the IR does not have a strong case, it will rally those direct telemarketers with foresight to look at new or improved direct marketing methods.

“I think it will also spur them on to influence the final outcome by either getting involved in any impending disputes, or getting involved in the legislative amendment process that, in my view, will be the eventual way the issue will be resolved.”