More and more consumers are becoming aware of the war being fought for their attention. The ammunition being used includes e-mails, faxes, sms’s and other forms of electronic communication. The prize: The attention of the man on the street, your average consumer. Enter the Protection of Personal Information Act (POPI) which will redraw the battle lines of this war for consumer attention. POPI aims to (at least in part) ensure that whoever wins this war for attention, wins it fairly and legally. But how have these battle lines been redrawn and can your business still market directly through electronic means to consumers?

The current situation

The direct marketing environment is currently regulated primarily by the provisions of the Consumer Protection Act, 2008, National Credit Act, 2005 and the Electronic Communications and Transactions Act, 2002. The current position can essentially be described as an ‘opt-out’ system. Whilst the consumer has the right to at any time opt-out of unwanted future communications, direct marketing can commence without the consumer’s prior obtained consent. Thus, all being fair in love and (direct marketing) wars, direct marketing can continue until the consumer cries ‘enough!’.

What is POPI and how will it affect direct marketing?

POPI, in general terms, aims to regulate the use of personal information and establishes certain conditions for the processing thereof. In the context of direct marketing to consumers it will, when it comes into effect, regulate the manner in which direct marketing may be done.

POPI specifically targets direct marketing by electronic means (including faxes, sms’s, e-mail and voice automated systems) and provides that direct electronic marketing can, broadly speaking, only be done in the following ways:

• The consent from a consumer must always be obtained before any direct electronic marketing can take place. A consumer must thus ‘opt-in’ before marketing can take place, unless the consumer has previously indicated that he does not wish to receive marketing material. A consumer may accordingly be contacted once to ‘opt-in’ for direct marketing purposes. This ‘opt-in’ message may not convey marketing content and should simply inform the consumer of the products or services that the provider may likely market to the consumer and request the consumer’s consent (‘opt-in’) to receive such marketing material. If the consumer does not ‘opt-in’ then no further communication may be sent.
• Where a consumer is an existing customer who has supplied their personal information in the context of a sale of a product or service and has at the collection of their personal information been afforded the opportunity to ‘opt-out’ from receiving marketing material of similiar products or services of the provider and did not do so, then in each communication done for marketing purposes thereafter, the consumer should have the option to ‘opt-out’ of receiving further marketing information - but marketing material of similiar products or services can be sent to the consumer until such time as a consumer does decide to ‘opt-out’.
• Importantly: Each communication for the purpose of direct marketing must contain both the provider’s identity as well as contact details which the consumer can use to ‘opt-out’ of further marketing communications.

In light of POPI, how should direct marketing efforts proceed?

POPI has been signed into law, but with the exception of certain sections, has yet to come into operation. When it does come into operation, businesses utilising direct marketing campaigns will have to ensure that their efforts are aligned with POPI or face the possibility of hefty fines or even imprisonment.

How should direct marketers proceed? In any battle, planning is key and appropriate planning can provide your business with the necessary edge. In anticipation of POPI, a business should:

• Audit its database used for direct marketing purposes and determine where ‘opt-in’s’ will be required and where ‘opt-out’s’ will suffice.
• Take steps to obtain the necessary ‘opt-in’s where required and remove personal information of persons who have not provided the necessary consent for direct marketing (or have opted out), from their databases.
• Establish an ‘opt-in’ process for new or prospective clients which aligns with POPI.
• Obtain expert advice in putting the necessary privacy policies in place which will provide a framework for the processing of personal information, in compliance with the provisions of POPI.
• Establish security measures to prevent personal information held by your business from being illegally accessed by third parties or being used for purposes for which no consent was provided.

Conclusion

Whilst POPI’s strict requirements may seem like a call to lay down arms in respect of direct marketing, this is not the case. POPI rather demands that a business aligns its marketing strategies with POPI and implement more focused and realistic marketing strategies. Businesses will be forced to focus their time and effort on consumers and potential consumers who are in need of or interested in their products and services, and have indicated such interest, and not expend efforts on consumers who have no need for what they supply. Businesses will be forced to think out of the box and find new (legal) ways of vying for consumer attention, with the most creative marketers winning the war.

Written by Lynette van der Walt, Director, Phatshoane Henney Attorneys: Commercial Department