South Africa has issued an updated Guidance on Direct Market to protect the personal information of consumers in a more robust manner. This follows the Information Regulator’s first enforcement notice for non-compliance with the 2013 Protection of Personal Information Act (PoPIA)’s direct marketing provisions earlier this year. The recent Guidance Note outlines how to process personal information for direct marketing in compliance with PoPIA’s lawful processing conditions. Here are key elements DPOs need to aware of, to ensure their organisations remain compliant.
Definitions of direct marketing and why it matters
The PoPIA categorises direct marketing into two types:
- Non-electronic direct marketing: Communications delivered via post, hand, or in person.
- Electronic direct marketing: Communications sent through phone calls, emails, SMS, automated calls, or social media messages.
Businesses need to correspond with data subjects (e.g., customers and other third parties). However, as each category has distinct requirements, it is essential for DPOs to assist their organisations in complying with these nuanced differences to avoid legal risks.
Compliance for Non-Electronic Marketing
For non-electronic direct marketing, organisations must have a valid legal justification for processing personal data, such as:
- Ensuring there are legitimate interests regarding communications to data subjects: For example, offering discounts or suggesting products based on purchase history.
- Pursuing the legitimate interests of the organisation: Such as promoting sales or raising awareness about products or services.
The term legitimate interest is not explicitly defined in PoPIA, but the Guidance Note frames it as a justification benefiting the customer, organisation, or third party that is reasonable and defensible.
To ensure that businesses adequately balance and consider these points, DPOs must ensure their organisations conduct legitimate interest assessments to validate this basis. Furthermore, if a data subject objects to such marketing, their preference must be respected, and they cannot be contacted again. Therefore, DPOs also need to assist businesses by implementing processes and procedures to comply with these requests.
Rules for Electronic Marketing and Consent
Electronic direct marketing involves stricter rules based on whether the recipient is an existing customer or a non-customer:
- For existing customers, direct marketing is permitted if:
- Contact details were obtained during a prior transaction.
- Communications relate to similar products or services.
- Customers were offered an opt-out option during data collection and in subsequent communications.
- For non-customers, explicit prior consent is required. Organisations may send a single request for consent only if the recipient has not previously refused.
To obtain valid consent, the request must align with the PoPIA Regulations and include:
- A clear description of the products or services being marketed.
- The methods of communication (e.g., email, phone, SMS).
- An explicit option for the data subject to agree or decline.
When consent is sought via phone calls or automated messages, organisations must verbally or digitally provide the necessary information, and they must document the data subject’s response for compliance purposes. It is therefore essential that DPOs ensure businesses have protocols in place for providing and documenting consent in corresponding ways.
Sender Identification and Opt-Out Obligations
All direct marketing communications must include:
- The sender’s identity or the name of the organisation on whose behalf the communication is sent.
- Clear instructions on how recipients can opt out of future messages.
Organisations are also required to maintain a database of individuals who have opted out or withheld consent, ensuring that these preferences are strictly honoured.
Moving beyond advisory to enforcement
Although the Guidance Note is advisory, it signals the Information Regulator’s intent to enforce compliance rigorously and in accordance with these suggestions. DPOs should encourage their organisations to review and refine their direct marketing practices immediately to ensure it aligns with the new guidance. Steps to rectify any identified deficiencies should be taken as soon as possible.
Non-compliance could lead to significant penalties, reputational harm, and loss of customer trust. By adopting the Guidance Note’s principles, organisations can build transparent, accountable marketing strategies that foster trust and withstand regulatory scrutiny.
For data protection officers, the priority is clear: ensure that direct marketing activities are not only compliant but also ethical and respectful of data subjects’ rights. This is not just a legal requirement but a cornerstone of good business practice in today’s data-driven world
