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EXCLUSIVE: InfoReg cracks whip on pesky direct marketing calls

Simnikiwe Mzekandaba
By Simnikiwe Mzekandaba, IT in government editor
Johannesburg, 21 Feb 2024
Speaking at the ITWeb Governance, Risk and Compliance Summit on 20 February 2024, Adv Pansy Tlakula, chair of the Information Regulator of South Africa, discusses the work of the regulator, specifically in regards to POPIA and PAIA, and how the number of breaches being reported are increasing as hackers find ‘fertile ground’ in South Africa. She also discusses the upcoming elections, disinformation campaigns, and the role of the Information Regulator in regulating the use of AI. #ITWebgrc2024 #Informationregulator #cybersecurity

South Africa’s Information Regulator (InfoReg) is taking a strong stance against telemarketers, deciding that telemarketing by telephone constitutes electronic communication.

Resultantly, the InfoReg has completed the direct marketing guidance note to be put out for public consultation.

The note 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).

To date, telemarketing companies have been able to go around the interpretation of electronic communication as defined in POPIA, as the Act stipulates that electronic communication is communication that is stored in the network or in the recipient’s device until it is collected by the recipient, chairperson of the Information Regulator, advocate Pansy Tlakula, told delegates attending the ITWeb Governance Risk and Compliance 2024 yesterday.

This has meant that data subjects have continued to field unsolicited direct marketing phone calls, despite POPIA being in effect.

Advocate Pansy Tlakula, chairperson of the Information Regulator.
Advocate Pansy Tlakula, chairperson of the Information Regulator.

Discussing some of the major milestones the regulator has been working towards in the past 12 months, Tlakula revealed the progress the watchdog is making in regards to pesky telemarketers.

She also noted that South Africa’s data privacy enforcer is finalising the first complaint that it investigated on direct marketing through unsolicited e-mails.

“The big issue in direct marketing…is whether a telephone constitutes electronic communication. If you receive a call from a telemarketer is that electronic communication or not? Some people say telephone is not electronic communication.

“I can reveal here that we’ve taken [a decision] that a telephone is a form of electronic communication. Telemarketing will then come within Section 69 of POPIA because these telephone calls have become such an inconvenience. They annoy everybody, including me,” she said.

Tlakula explained that data subjects also receive messages through e-mail and SMS, which constitute electronic communication. However, people are not aware that the first message they should receive via SMS is the one that asks for their permission to receive marketing messages.

“In that communication, it should specify what goods intend to be marketed and what kind of communications tool should be used to communicate with you.

“If you decline the communication, they should stop but they don’t stop. We’ve been nice and trying to deal with these issues through alternative dispute resolution, namely if you submit a complaint, we call the company and request them to stop. They stop, but they then change their number and call again. This is why we’ve decided that once and for all we should take the matter to its logical conclusion and investigate these matters.”

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

Despite its decision, the InfoReg’s chairperson foresees a legal hurdles ahead, as the direct marketing companies will most likely try to fight this.

Speaking to ITWeb on the sidelines about the impact this could have on the direct marketers’ bottom line, Tlakula elaborated that they’re not saying the businesses must close.

“If you look at the UK and other countries, direct marketing through a telephone constitutes electronic communication. All they have to do is that with the first call that they make to a data subject is to ask if you are interested in receiving direct marketing messages; do you consent to receiving messages, and state the products being marketed.

“If you are interested in receiving those messages what form of communication should be used: e-mail, SMS or a phone call. Right now…people drop those calls or have TrueCaller to block them. My view is that if they take that approach, people will be more sympathetic. They must put all the people who have consented on a database and all those that have not must be on another database so that they are not contacted.”

She noted that another problem is determining where these companies get data subjects’ details. “There are companies that sell our personal information. They have to ensure that they obtain our information lawfully and the requirement is that there are exceptions to that.

“They can obtain our information from a public record, which are records held by a public body. They can also get that information if the owner of the information made it deliberately public.

“The rules are very clear but I think with direct marketing – my sense is that we’ll probably end up being in court. They will wait for the time when there is a complaint and once we decide against them, they’ll probably take us on review and the issue of whether a telephone is electronic communication or not will come to the fore.”

She stated that direct marketing complaints are received across the board, even from members of Parliament within the portfolio committee. “That is why we needed to take a decision and it took us a long time to take that decision when we finalised the direct marketing guidance note. We took a decision to say once and for all that a telephone is an electronic communication.”