PoPIA and electronic direct marketing
Direct Marketing is defined in the Protection of Personal Information Act (POPIA) as ‘marketing aimed at an individual with the direct or indirect purpose of selling goods or services or to solicit a donation of some sort from the data subject’.
Is cold calling affected by section 69 of POPIA? Some consumers still have a misconception regarding the legality of cold calling, notes Serr Synergy. The good news for telemarketers and consumers (in some cases) is: Yes, cold calling is still allowed under PoPIA. Of course, there are rules that regulate the practice under PoPIA in addition to other legislation that was in place before PoPIA was introduced.
According to section 69 of PoPIA, Direct Marketing through Electronic Communication is unsolicited unless– 1. the data subject (the recipient) has given consent;
2. the data subject is a customer of the responsible party (the sender);
a) the contact details of the data subject were obtained during the sale of the responsible party’s own similar product or service
b) the data subject was given an opportunity to object to Direct Marketing–
when the contact details were collected
on every occasion of the Electronic Direct Marketing Communication sent to the data subject.
Peter Hill from the Information Officers’ Association makes the following point:
‘If the call is recorded, it falls under POPIA. If a call is via a digital device (an electronic message) it is recorded.
Since most telephone calls are digital they fall under POPIA.
To call someone, you will need to have a telephone number. Using a telephone number comprises processing under POPIA. You cannot use someone’s telephone number without their consent.
A data subject can object to the processing of their personal information at any time. Consequently, the data subject must be given the opportunity to object to the use of their personal information. This includes at the time you first acquire the data subjects personal information.
You are required to acquire personal information directly from the data subject, or tell them you have acquired their information from another source as soon as possible. You will need to have a legal basis to be in possession of the data subject’s personal information.
If you use a data subject’s personal information, you need to notify the data subject of the purpose, the name and address of the responsible party, the information being processed, etc.
If you are using an analogue telephone, go ahead and make the call, but make certain you comply with all the requirements of POPIA.’