Technology · June 23, 2022

The Spam Act cannot protect South Africans from telephone marketers

South Africa’s Personal Data Protection Act (POPIA) does not protect you from marketers contacting you by phone unless you specifically tell them to stop calling you.

This is because POPIA does not include telemarketing in its definition of unsolicited electronic communications.

“The law prohibits direct marketing through unsolicited electronic communications,” Pansy Tlakula, chair of the Information Regulatory Agency, said during a interview with 702.

“Electronic communication is defined [as] a text, voice, sound or image transmitted over electronic communications networks and stored on the recipient’s network or equipment.

“Direct marketing messages sent over a telephone do not fall within this definition as a telephone is not an electronic communications device within the meaning of the Personal Data Protection Act,” Tlakula added.

She explained that the call recipient had to object to telephone marketing campaigns. Once they have opted out, the telemarketer cannot contact them again.

“The telemarketer only has to contact the data subject once to obtain their consent.”

“If that person has been approached before and they refused to be approached again, they should not be approached again.”

Tlakula explained that in some situations, the telemarketer may have derived the person’s contact information from public records.

Pansy Tlakula
Pansy Tlakula, Chair of the Information Regulatory Authority of South Africa

However, to facilitate contact tracing during the Covid-19 pandemic, South Africans have had to write down their phone numbers when entering venues.

When asked if telemarketers could use this contact information for sales calls, Tlakula said the contact tracing forms are not considered public records. If companies used them, they would violate POPIA.

She said examples of public records include the Chartered Institute of Procurement & Supply and the Register of Deeds.

She added that any numbers loaded publicly on social media are also considered public records.

Tlakula outlined the process for targeting telemarketers who continue to call despite being told to stop.

She said it’s important to record the contact numbers and names of such telemarketers so you can ask the company to stop calling you if they don’t stop calling after you tell them over the phone.

This is because South African law requires telemarketers to disclose where they are contacting you from.

Tlakula said you should submit the telemarketer’s data to the information regulator if they continue to harass you with calls after you file a request to stop.

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