Legislation with hefty penalties will soon outlaw those pesky unsolicited marketing SMSes

2013-09-24 00:00

“CALL now for free vehicle insurance no obligation quotation. SMS ‘Stop’ to 1234 to opt out. SMS charged at 50 cents.”

This is the sort of unsolicited SMS that often arrives after transacting with and providing my personal details to a business and leaves me suspicious that my information has been sold to a marketer without my permission.

Habitually, and to the wry amusement of store assistants, I stipulate on business forms that my cellphone number or personal information may not be sold or shared for marketing purposes. Sadly, it seems this instruction is largely ignored.

But not for much longer, thanks to the imminent promulgation of the Protection of Personal Information Bill (POPI), which will regulate the way businesses obtain, handle and store customers’ and employees’ personal information.

No longer will companies be able to buy and sell consumers’ personal information for marketing purposes without meeting certain conditions, such as the consent of consumers.

A new Information Regulator will be established to investigate consumer complaints about privacy, and the penalty for those who break the law will be a fine of up to R10 million or 10 years in jail.

Consumer rights groups and privacy law experts have welcomed the legislation, but have cautioned that its success depends on a strong regulator strictly enforcing compliance.

South African National Consumer Union vice-chairman Clif Johnston said POPI was “absolutely essential” for consumers and businesses.

“The legislation will bring us in line with the rest of the world, which is important because personal data moves around the globe — just think online shopping or call centres located in other countries.

“Countries lacking appropriate legislation run the risk of becoming clearing houses for worldwide trading of personal data, and ultimately, being blacklisted from doing business with reputable global businesses,” Johnston said.

Johnston said it will make a big difference to consumers who are feeling increasingly vulnerable when providing businesses with personal information.

“The legislation aims to ensure personal information in the hands of organisations is only used for its intended purpose, and is not traded or otherwise passed on to third parties for purposes such as direct marketing or spam,” Johnston said.

Consumer Fair chairman Thami Bolani said the legislation was “long overdue” since the U.S., the EU and Australia have had similar legislation for many years.

Bolani said it was an important step to combat identity theft, which had become a major challenge. It would also protect consumers from making wrong purchasing decisions after receiving unsolicited SMS and e-mail adverts.

Webber Wentzel partner and POPI expert Pamela Stein said the legislation gives effect to citizens’ constitutional right to privacy. Not least, online.

“POPI deals specifically with electronic direct marketing. It establishes an ‘opt-in’ regime, which means marketers will be required to obtain consent prior to contacting you for marketing purposes. They may only seek your consent once,” Stein said, adding that consumers could lodge a request for details of their personal information held by businesses.

“Anybody who does not comply with such a request may be investigated by the Information Regulator and, in extreme cases, will be liable to pay an administrative penalty or face criminal charges.

“One of the big issues will be whether the Information Regulator will have the capacity to deal adequately with its enforcement duties,” Stein said.

Michalsons Attorneys privacy law expert John Giles said it would not be unlawful to buy and sell personal information, but companies would have to comply with conditions.

“Companies that do it badly will struggle and their activities will probably become unlawful. Consumers will also have a lot more access, power and control over their personal information.”

On the issue of spam received after transacting with a business, Giles said retailers would have to limit their processing of personal information to a specific purpose.

“They must be open about what they are doing and allow you to control what gets done with your personal information,” Giles said.

Giles advised consumers to take the following steps to protect their information:

• Only give your personal information to companies you trust.

• Put your name on the Do Not Contact register at www.nationaloptout.co.za.

• Read privacy policies before agreeing.

• Ask organisations to tell you what personal information they have and ask for it to be deleted.

• Unsubscribe from newsletters.

• Complain to the business and to the Information Regulator.

Giles said while some companies were ready for the law, many remained unprepared. “There is time and there is no need to panic, but responsible parties need to take action now,” Giles said.

POPI is expected to be effective from February 2014 with businesses granted a year to comply. Journalists, the cabinet, the police, artists and public bodies involved with national security have been exempted.

Send your comments and consumer issues to consumer@3i.co.za.

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