Marketing and consumer consents

You’re lost in a complicated thought-process and the phone rings. Absently you answer it. It’s some guy whose name you didn’t catch, asking deeply personal questions like whether there’s enough money in your bank account to cover your credit card if you die. As you politely extricate yourself from the call, you see that another wayward email has nipped through your security net – this one is trying to sell you a discounted holiday to some secluded island. As you finally kill the call and junk the mail an SMS pings for your attention – you’ve been pre-approved for a loan! You seriously contemplate using that loan for that island holiday, if for no other reason than to escape this seemingly incurable marketing epidemic. But here’s the thing: consumers are finally receiving protection against these ploys.

The Protection of Personal Information Act (POPI) includes an “opt-in” system. This means that a company is not allowed to conduct electronic marketing without the consumer’s prior consent – although a business is entitled to contact a consumer once to obtain this consent. There are, however, limited situations where a company can market without first obtaining consent. A company can market to their existing customers, without obtaining their consent, if:

  • The company obtained the customer’s contact details in the context of transacting with them (think of the returns slips you fill in when you return those new clothes your kid doesn’t like);
  • The company uses their customer’s contact details for the purpose of marketing similar products or services (shortly after returning the clothes you’re contacted by their cellphone division. Not cool);
  • The customer was given a reasonable opportunity to object to being contacted. This objection must be free of charge, and must not involve a difficult or cumbersome process (you tell them to remove you from their database – and they direct you to a website that requires a ten-step registration process before you can find the unsubscribe button);
  • Every time the company sends marketing material to the customer, the customer must be given an opportunity to unsubscribe, or opt out of the company’s future marketing initiatives (after politely reading – and deleting – the same sales pitch over five consecutive emails, your patience finally runs out … now where is that unsubscribe link?)

While POPI is not yet in operation, businesses will have one year from the date of the Act’s commencement to ensure that their marketing processes – consents included – are in order.

Of course, limitations on direct marketing is nothing new. The Consumer Protection Act also contains provisions to protect customers from unwanted contact with persistent marketers. In terms of the CPA, consumers are entitled to demand that the marketer refrains from contacting them in the future. But in practice, we all know how well that approach works – or not.

In the meantime, many honest companies doing an honest business try their hand at honest and compliant marketing initiatives. The message is simple: if you want to avoid being tarred with the same brush as the horde of non-compliant spammers, then keep it legal. You can prepare for POPI by making sure that you’ve received consumer consents to your marketing. If you’re marketing to an existing customer without their consent then make sure that you’re doing so within POPI’s parameters. And make sure that the consumers in your database are given the opportunity to refuse further marketing contact.

The optimum solution is to obtain written marketing consents. And where better to include a consent to marketing than in your written terms of doing business? If you haven’t implemented terms, policies and notices in your business then now might be a good time. As you build up your database of consumers who have opted into your marketing endeavours, you can market to them to your heart’s content, secure in the knowledge that you’re legally compliant – and marketing to people who are actually interested in information about your offerings.

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