Adv Louis Nel Business Review Advice: Direct Marketing & Cold Calling
I dealt with prohibited contact and cooling off in my previous article. I did not mention one important cautionary contained in the CPA namely section 32 which requires the supplier to advise the consumer of his/her right to cancel any agreement entered into due to direct marketing in terms of section 16 i.e. the ‘cooling off’ period of 5 business days (As mentioned for agreements that fall within the ambit the ECTA, the period is 7 days)
Definition of Cold Calling
What is ‘cold calling’ (‘CC’)? Firstly bear in mind the definitions of DM as discussed in my previous articles, the key difference between POPIA and the CPA being that the CPA includes communications by telephone in its definition of electronic communication, and POPIA does not. However, both defines direct marketing in the same words i.e. ‘approach a person, either in person or by mail or electronic communication’ but it is the medium that is different i.e. compare the definitions of ‘electronic communication’ (‘EC’).
CPA: It means ‘any communication by means of electronic transmission, including by telephone, fax, sms, wireless computer access, email or any similar technology or device’
POPI: It means ‘any text, sound, voice, image message sent via a telecommunications network’ (not defined)
Compared side-by-side it seems the CPA deals with ‘any communication’ i.e. ‘live’ so to speak as well as messages (so-called ‘telemarketing’) whereas POPI focuses on ‘message(s)’
Let’s move onto the term CC – it is not defined per se in the CPA or POPIA so we have to resort to the common law understanding of the term – the Oxford dictionary defines it as follows:
Make an unsolicited visit or phone call to (someone), in an attempt to sell goods or services.
Again it would appear that ‘messages’ don’t constitute CC.
I’ve been addressing mainly the CPA in my previous 3 articles, so I will continue in that vein and after that look at what POPIA has to say about DM and CC
The first point to note is that the CPA places a substantial onus on direct marketers and affords customers material ‘protection’ in section 11 as discussed in my 1st insert namely a potential pre-emptive block (‘opt-out’) once the register has been established by the Consumer Commissioner (which the marketer must survey before proceeding) and section 12 which addresses the times of the day consumer may be approached.
Whilst the ‘protection’ discussed in the preceding paragraph pertains to the so-called ‘in-person’ approach, the CPA also addresses ‘flyers’ i.e. if the consumer can display a sticker/notice at his/her entrance or post/P O Box which reads ‘No adverts’ which is intended to block/pre-empt any form of written CC (Sadly they did away with the well known & generally understood ‘Junk Mail’ wording! I saw lots of these when travelling around Ireland after the ASATA conference there) – see regulation 4 (2)
As per my insert #1, the CPA contains an exception i.e. vis a vis existing clients in Section 11 Regulation 4 (3)(g) BUT note the ‘expressly consented’ requirement i.e.
Existing clients where the direct marketer has proof that the existing client has after the commencement of these regulations expressly consented to receive direct marketing from the direct marketer.
The key difference, as indicated above, whilst POPI does include ‘in person’ in its definition of DM, it is more focused on EC. Whilst it does not prohibit DM per se as does the CPA, it does contain certain requirements that have to be met if you want to embark on DM – these are contained in section 69 namely that the party doing the DM (Responsible Party: ‘RP’) must have previously obtained the consent of the party to whom the DM is addressed (Data Subject: ‘DS’) (opt-in) or it must be a customer of the RP in which case the following additional requirements must be met:
- The consent must’ve been obtained ‘in the context of a sale of a product or a service
- The purpose of the DM must be for ‘the RP’s own similar product or service
- The DS must’ve been given a reasonable opportunity to object free of charge to the use of his/her electronic details at the time the information is collected and on the occasion of each communication with the DS for DM if the DS did not initially refuse such use’ (opt-out)
Given the definition of ‘cold calling’ POPIA strictly speaking, does not apply to it being limited to electronic communications and direct marketing via electronic means BUT it still applies to any unsolicited approach via such medium and thus the requirements of section 69 must be met.
It would appear that, depending on how the anticipated NCC to register is worded, it can be based on either the so-called ‘opt in’ or ‘opt out’ approach, whereas POPI applies the ‘opt-out’ version to existing customers (Provided the requirements of section 69 have been met) vis a vis the ‘opt-in’ alternative in the case of DS that is not clients.
Whichever route you prefer, compliance with the statutory requirements discuss above is imperative and caution is the watchword.
© Copyight louis-THE-lawyer
February 20 2023
