Sending spam to be outlawed
Bill aims to provide protection for all the personal information that is processed by public and private bodies
PAMMERS beware! Sending unsolicited e-mails, SMSs and faxes could soon be illegal if Parliament passes the Protection of Personal Information Bill 2009 into law. If passed, the law could have a significant effect on the practice of direct marketing in SA — a cause for celebration for those harassed continually by direct marketers and a cause for concern for those employed in this labour-intensive industry.
The bill aims to outlaw unsolicited e-mails, SMSs and faxes, while at the same time preventing call centres from creating and using contact lists to reach potential customers without their prior consent. Following international trends, the move is away from an “opt out” approach towards an “opt in” approach that requires the consumer’s consent before contact is made. Since prior consent by definition excludes cold calling and spam it will lead to major changes in the industry.
As the law stands, direct marketers are entitled to send electronic messages, usually SMSs and e-mails, to potential customers. However, these messages must include information identifying their source and must allow the receiver to opt out of receiving further communications. Unsolicited telephone calls are allowed but are subject to regulation in the credit and financial services sectors. The rules in these sectors prevent harassment, give receivers an option to opt out of
Sreceiving further calls, and provide a code of conduct for call-centre workers to follow. New consumer protection laws provide for a cooling-off period, authorise future regulation as to permissible hours for direct marketing, and pave the way for establishing a national “do not call” registry.
The bill aims to protect all personal information that is processed by public and private bodies. It follows similar legislation in the UK and the European Community. The bill contains a number of provisions regulating the types of information that may be obtained and the manner in which it may be processed. For example, the bill prohibits, the processing of personal information regarding a subject’s race, except in narrowly defined circumstances.
Section 66 of the bill prohibits all unsolicited electronic communications. This prohibition covers SMSs, emails, faxes and automatic calling machines capable of making outbound calls with a recorded voice. Under section 66, all these types of unsolicited electronic communications will only be allowed when the receiver has given prior consent or is an existing customer of the company. Communications can only be sent to existing customers when their contact details were obtained through a previous sale of a product or service. Further, these communications can only be in the context of selling a similar product or service from the same company. Therefore the practice of selling contact lists to other companies will be illegal. Adding to this, the existing customer maintains the right to opt out at any stage.
While there is no provision in the bill that specifically prohibits making commercial sales calls, the general law regarding the processing of personal information in section 10 of the bill only allows the processing of personal information in a limited number of situations. This would effectively prevent a business from compiling and using a database of numbers of potential customers unless the business has already obtained their consent to be contacted. Apart from dialling numbers at random from a pre-existing printed or offline electronic telephone directory, processing a database of contacts will probably only be possible for making commercial sales calls if it is shown to be “necessary for pursuing the legitimate interests” of the business on whose behalf the calls are made. It is unclear at this stage whether “legitimate interests” would include a business’s desire to promote its products and services.
If the bill comes into force businesses will be given a year to conform. An office of the information protection regulator will enforce compliance with the bill, and enforcement notices will be served on businesses that fail to comply. Continued non-compliance with an enforcement notice may lead to a fine or imprisonment for a maximum of 12 months. A civil damages claim may be available to a consumer against an offending business.
The Direct Marketing Association of South Africa (DMA) has made a number of submissions regarding the bill. At this stage the bill is before the portfolio committee on justice and constitutional affairs. It is not clear what final form the bill will take, but it is clear that a balance needs to be struck between competing interests. The frustration of spam-filled e-mail and SMS inboxes and the annoyance of a dinner being interrupted by an unsolicited sales call are common irritations in the lives of many South Africans. Some may even feel that these constitute an encroachment on their privacy.
On the other hand, the direct marketing industry provides employment for thousands of South Africans, and outsourcing the call-centre industry has great potential for international growth.
It is hoped that the final piece of legislation will take into account these competing concerns.