Ina Opperman

By Ina Opperman

Business Journalist

These are your rights when it comes to spam calls and emails

Everyone complains about unsolicited direct marketing, but do you know how your rights are protected by legislation to limit and block it?

Now that the Information Regulator issued its first enforcement notice as a result of a direct marketing complaint, consumers must also remember that apart from the protection the regulator offers using the Protection of Personal Information Act, they are also protected by provisions in the Consumer Protection Act.

The Consumer Protection Act (CPA) protects your right to privacy and choice in sections 11 and 16, while regulations 4 and 12 makes it clear when telesales people can contact you, what you can do to stop direct marketing targeting you and how you can cancel the transaction if you give in and buy something a direct marketer almost forces you to buy.

The CPA defines direct marketing as the process of approaching someone, in person, by mail or electronic communication, for the direct or indirect purpose of selling any goods or services to them in the ordinary course of business.

However, when you phone someone to buy something and that person calls you back, it is not regarded as direct marketing. When you act on an advertisement and buy something at a shop, it is also not direct marketing. The direct marketing must come from a business that you have not had any contact with.

ALSO READ: Spam calls driving you nuts? Here are your rights regarding direct marketing

Your right to limit direct marketing

Section 11 gives you the right to limit direct marketing. You can refuse to accept any direct marketing, require that the company stops contacting you and block the direct marketing. This means that you can require that direct marketers stop contacting you and remove your name from their calling lists.

This section also requires people in control of direct marketing to implement appropriate procedures to make it easier for you to ask them to stop contacting you and that your name is removed from their call list. Companies are also not allowed to charge you to take your name of the list.

It is important to remember that consumers usually agree to direct marketing in writing when they fill in a form to apply for credit when you check a box that you agree to receive information about specials or new products. If you check the box, the store is allowed to contact you, but this does not mean that other telemarketers can.

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Time limits for direct marketing

And what about the telemarketers calling you at six in the morning or at lunchtime on a Sunday? Section 12 and Notice 34180 that was published in the Government Gazette clearly states when telemarketers are not allowed to call you.

They are not allowed to contact you on Sundays and public holidays and on weekdays only between 8:00 and 20:00 and between 9:00 and 13:00 on Saturdays, unless you agreed to other times. This regulation also applies to all other kinds of electronic communication, not only telephone calls.

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Cooling-off period

And if you gave in and bought something just to make the telemarketer go away? Section 16 contains a very important part of your protection against direct marketing by stating that you have a colling off period after concluding a transaction that happened as a result of direct marketing.

You can cancel the transaction within five working days after the transaction or after the product was delivered, whichever happens first. You must be able to prove that you cancelled within five days, but you do not have to give a reason for the cancellation or pay a fee in order to cancel.

The company must then refund any money you already paid within 15 workdays if no products were delivered, or if the product was delivered, within 15 days from receiving it back. However, if you used some of the product, the company can require you to pay a fair fee for that.

However, section 16 does not apply to a transaction if the transaction falls within the ambit of section 44 of the Electronic Communication and Transaction Act.

ALSO READ: South Africa’s Information Regulator acts against FT Rams over privacy law breach

The role of the Information Regulator

The Information Regulator’s first endorsement notice comes at a time when people are highly frustrated with the influx of direct marketing messages. She issued an enforcement notice to FT Rams Consulting, a training institution, after findings that the institution contravened various sections of the Protection of Personal Information Act (POPIA).

Someone complained to the regulator after receiving countless direct marketing messages from the institution and multiple attempts to opt out and requests to be removed from the company emailing list failed as FT Rams Consulting blatantly ignored the consumer’s requests.

The Regulator determined that FT Rams Consulting interfered with the consumer’s protection of personal information and breached the conditions for lawfully processing personal information. In addition, the regulator found that FT Rams Consulting violated section 69 of POPIA which regulates direct marketing by means of unsolicited electronic communications.

It is bad news for companies that simply ignore requests to stop direct marketing, as the regulator warned that there will be no more leniency regarding direct marketing through unsolicited electronic communications because companies doing direct marketing ignore the provisions of section 69 of POPIA and infringe on the rights of consumers.

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