The Information Regulator is creating regulatory confusion because it wants spam telemarketing to fall under its ambit, while the industry says it has no legal authority to take up the fight against illegal marketing callers.
This issue has been created by advocate Pansy Tlakula, chairman of the Information Regulator, saying she will set a legal precedent to extend the definition of “electronic communication” to include telemarketing. This, she says, would put spam callers firmly within its ambit so they can be penalised for unwanted marketing calls.
However, industry body the Direct Marketing Association of South Africa (DMASA) says spam calls fall under the Consumer Protection Act (CPA) and not at all under the Protection of Personal Information Act (POPIA).
Tlakula’s plan is to first investigate issuing an enforcement order against an unnamed company calling people without permission and then take them to court if they don’t abide by the order.
Tlakula says “we only need one test case” to set a precedent.
Jurisdiction dispute
The DMASA points out, based on a legal opinion from Werksmans Attorneys, that telemarketing calls fall firmly under the ambit of the National Consumer Commission, although they must also comply with POPIA’s data protection requirements.
The DMASA does work with the Information Regulator by referring data breach issues to it.
The actual company at fault for spam calls needs to be dealt with under the CPA, while the fact that they got a consumer’s data at all is a matter to be resolved under POPIA, the industry says.
In its fourth quarter report, released in September, it notes that the “continued reports of non-member telemarketing and unauthorised data usage underscores the ongoing need for broader industry education and collaboration with the Information Regulator”.
The DMASA is a voluntary, non-profit industry body that runs a “Do Not Contact” database. Its members have signed a code of conduct not to contact people on that list.
The report, shared with ITWeb, states it received eight complaints on telemarketing spam, of which two were resolved and the balance referred to the Information Regulator for data abuse violations.
Legal precedent concerns
The Information Regulator may come up against a legal block in its bid to stop telemarketers from disturbing people’s lives.
Commenting on a matter in which the South African Reserve Bank is trying to persuade the court that a 1961 regulation applies to Bitcoin, Joon Chong, a partner at law firm Webber Wentzel, argues that the central bank can’t use the courts to change the law instead of following a legislative process.
This could set the Information Regulator back because it effectively seeks to expand POPIA to include oversight over telemarketing through the courts rather than through Parliament.
Do not contact
Complicating matters is that government wants to change how telemarketers can operate altogether.
Under the CPA, which came into effect 14 years ago, government was required to set up a national opt-out registry. However, this was never done.
Then, last November, the Department of Trade, Industry and Competition (DTIC) issued a call for public input on draft regulations to amend the CPA that would enable it to create a national opt-out registry so that people can choose not to be contacted by telemarketers at all.
However, the DMASA says these regulations create uncertainty because the two laws have different requirements for when telemarketers can contact consumers.
POPIA’s legal framework allows telemarketers to call consumers once to ask permission for future calls – an opt-in system. The CPA is opt-out, requiring consumers to tell telemarketers to stop. Under the proposed national registry, which consumers would sign up for, they would be on it permanently.
The DMASA warns that “this uncertainty becomes debilitating and expensive, which may lead to massive job losses and business failure”. The direct marketing industry supports about half a million jobs.
Moreover, the draft regulations make the database permanent – once consumers sign up, there’s no mechanism to leave. If, for example, someone actually wants to be offered life insurance, they can never be contacted by a company that offers this product.
DTIC spokesperson Bongani Lukhele tells ITWeb that “the Opt-Out Registry project is at an advanced stage. The Opt-Out Registry will only be effective once the minister promulgates the amended regulations with the effective date.”
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