Important update for anyone wanting to block spam calls in South Africa
The National Consumer Commission (NCC) has given important updates and clarifications on how its new opt-out registry will work to block unwanted marketing and spam calls in South Africa.
The NCC is getting ready to launch its Opt-Out Registry system, which will allow South Africans to sign up and implement a general “do not communicate” block on companies in the country.
The Commission recently told MyBroadband that spam calls are out of control in the country, with consumers being hounded night and day by unwanted marketing calls.
However, the upcoming registry has raised many concerns among consumers and businesses that rely on marketing calls for their operations.
According to legal experts at Bowmans, uncertainty has arisen around the interaction between the new registry and the Protection of Personal Information Act (POPIA).
Other issues raised include the scope and effect of consumer opt-out preferences, the costs associated with compliance, and the practical operation of the mandatory monthly cleansing process.
The cleansing process removes consumers who have opted out of electronic communications from the direct marketer’s database, ensuring they are no longer contacted.
To address these questions and concerns, the NCC held a stakeholder webinar to explain and clarify the coming changes.
How consumer information will be handled
Consumer concerns related to privacy—especially the amount of information needed to register on the database—as well as how much control they would have over their entry.
In addition to basic contact details, the registration process requires consumers to provide information such as their marital status, citizenship, gender and whether they were living or deceased.
This prompted questions about whether the information being collected was necessary for the purposes of the Registry and consistent with POPIA’s data minimisation principles.
The NCC has now confirmed that personal information collected through the Registry will be processed in accordance with POPIA.
The commission also indicated that certain mandatory data fields will be removed from the registration process to reduce the amount of information consumers are required to provide.
Bowmans noted that, importantly, consumers will retain control over their information.
The NCC said that consumers will be able to delete their registry profile at any time, and their personal information will be removed from the registry once their profile has been deleted.
“While further detail on the Registry’s data protection safeguards would be useful, the NCC has indicated that it intends to align the operation of the Registry with POPIA’s requirements and to limit the personal information collected to what is necessary for its functioning,” the legal experts said.
How consumers will have to control their profiles
In terms of controls, the NCC clarified that consumers will not be limited to a blanket opt-out from all direct marketing communications.
Instead, the Registry will allow consumers to choose the level of restriction that best suits their preferences.
A consumer may choose between:
- A general pre-emptive block, which prevents all electronic direct marketing communications; or
- A specific pre-emptive block, which allows the consumer to opt out of direct marketing in respect of one or more of the following:
- (i) specific direct marketers
- (ii) particular industries
- (iii) specific marketing purposes or periods, and/or
- (iv) particular communication channels, such as a phone number or email address.
“This means that consumers will be able to tailor their marketing preferences rather than adopt an all-or-nothing approach,” Bowmans said.
For example, a consumer may choose to continue receiving direct marketing from certain businesses while blocking communications from others, or permit direct marketing by email but not by SMS or telephone.
The NCC has also confirmed that consumers can amend or withdraw their preferences at any time through the registry.
Businesses must accept that no means no
The NCC also clarified what would happen if a consumer signs up to the register and then subsequently opts in to marketing communication.
In this situation, a consumer would have to update their permissions on the registry for this to take effect.
Businesses should ensure that the pre-emptive block has been withdrawn by the consumer through the Registry before any electronic direct marketing communications are sent,” Bowmans said.
This is a similar position when looking at permissions that had been granted under the Consumer Protection Act (CPA).
POPIA already regulates direct marketing by means of electronic communications, but the NCC said that the two laws cover different things.
The CPA focused on consumer protection and POPIA focused on the processing of personal information.
Nevertheless, the NCC’s position is clear: where a consumer has registered a pre-emptive block on the Registry, that consumer should not receive electronic direct marketing communications.
Importantly, the NCC indicated that a consumer’s registration on the Registry will be treated as overriding any previous consent to direct marketing.
“Even where a business has obtained valid marketing consent under POPIA, that consent will effectively fall away once the consumer registers a pre-emptive block on the Registry,” Bowmans noted.
That said, the NCC acknowledged that the CPA does not expressly address circumstances where a consumer provides consent after registering a pre-emptive block.
As a result, the NCC indicated that complaints arising in these circumstances will need to be assessed on a case-by-case basis, taking into account all relevant factors, including whether the consumer expressly consented to receive marketing communications after registering on the Registry.
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