data protection impact assessment

POPIA - South Africa - Direct Marketing

It’s 1998. You’re on your way home from Video World with some Holy Moly’s and a six pack of Fresca. But you can’t shake the feeling that you’re being followed. Upon entering your house there’s a knock at the door.

Through the peephole you see a bright-eyed bushy tailed balding man shining his pearly whites at you and eagerly gesturing to his other hand.

It’s 2 minutes till the Family Matters finale but your curiosity gets the better of you, so you open the door.

“Hi!” he says, “are you interested in opening an account with Blaster Video?” Shock, horror - I’ll stick with Video World, thanks!

If you haven’t caught on by now, that is what today’s direct marketing may have looked like if it had been copied and pasted into the 90’s. People eyeballing our every move and targeting us based on where our interests lie...and let’s be honest...sometimes about things we’re not interested in at all.

The fact that it’s shifted almost entirely online, initially made it a bit less intrusive as the transition took place.

However, as the digital age matured, so did we. We realised that our boundaries were something to be valued and respected. Enter POPIA!

One of the main reasons we have data privacy regulation is to stop people from being bombarded with direct marketing.

What do we mean by direct marketing?

This is how POPIA defines it.

"direct marketing" means to approach a data subject, either in person or by mail or electronic communication, for the direct or indirect purpose of—
  1. promoting or offering to supply, in the ordinary course of business, any goods or services to the data subject; or
  2. requesting the data subject to make a donation of any kind for any reason.

Notice the 3 ways that people can be approached? In person, or by mail (post office), or electronically (email, phone, fax).

Regarding direct marketing (in person or by mail), POPIA goes on to say that people have the right to object, at any time, to organisations using their personal information for this purpose.

POPIA also states that people have the right to NOT receive electronic communications (email, phone, fax etc.), if they have not previously agreed to receiving them.

Picture the pushy 1998 salesman being physically unable to knock on your door. “It’s some electromagnetic force field! Curse you POPIA!!”

And...back to the future.

Direct marketing by means of unsolicited electronic communications.
Direct?... check!
Marketing?... check!
Unsolicited?... uhm, uninvited? ... check!
Electronic?... Email, phone, fax, automatic calling machines? ... check!

For this kind of direct marketing, we must look to Section 69.

POPIA says you cannot do direct marketing electronically, unless you have the person’s consent, or the person is an existing customer. Vegan Vincent receiving a BOGO coupon from Ace of Steaks would not only offend the entire leaf eater community but would be a clearcut POPIA violation. For poor Vincent, it was a case of direct, unsolicited, electronic marketing and Ace of Steaks would have to answer for this transgression no matter how tender and succulent their beef Wellington is...their POPIA compliance should be cooked to perfection!

If the direct marketing is to existing customers, you may only market to them if you originally obtained their personal details in the context of a sale of a product or service, the marketing must relate to your own products or services, and you must make it easy for the customer to opt out of receiving further communications. If your customers are playing Marco Polo with the unsubscribe button, you probably need to rethink the design of your opt-out function.

Where it’s NOT a customer and you need to obtain a person’s consent, you may only do this ONCE. Now, POPIA is unique among global regulations. In Europe, for example, you cannot email someone to obtain their consent to email to them. Makes sense, right? It would defeat the objective of avoiding electronic harassment. Pushy salesman comes inside and asks, “Hey, can I come inside?” Seriously, I am four five seconds from wildin...

At a recent breakfast briefing (not at Ace of Steaks), the Regulator expressed concern that South Africans continue to be bombarded with unsolicited direct marketing messages that do not comply with the provisions of section 69 of POPIA. The Regulator is also aware of current debate as to whether a telephone call constitutes an electronic communication in terms of the definition of electronic communication and will be issuing guidance on this matter.

By the way, according to POPIA, ‘automatic calling machine’ means a machine that is able to do automated calls without human intervention. Just saying.
We're not living in the nineties anymore. In keeping with this GenZ world, we value people’s boundaries and data subjects are legally protected in this way. Respect people’s force fields, brush up on POPIA Section 69, and if anyone receives unsolicited coupons from that steakhouse, do send them to me for further investigation.

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