All current consumers should provide confirmation that they wish to continue receiving direct marketing from the supplier. Without the existing customer confirmation, it is presumed that the supplier may not contact the customer, in other words if they don’t have your consent they are not entitled to contact you.
The consumers’ right to fair and responsible marketing is covered as a fundamental right in the Consumer Protection Act (CPA). This right goes hand-in-glove with the right to privacy which restricts unwanted direct marketing.
The CPA’s definition of direct marketing is extremely broad and requires clarification by case law. Direct marketing occurs when a person is approached, either in person or by mail or electronic communication, for the direct or indirect purpose of promoting or offering to supply, in the ordinary course of business, any goods or services or for the purpose of obtaining donations.
It is simply a system of marketing where the marketer communicates directly with a customer with the goal of extracting a measurable response and / or concluding a transaction. Direct marketing is not meant to be an irritant or bothersome in any way, it can be a useful tool for consumers, and is an important tool to drive our economy.
1. Every person’s right to privacy includes the right to refuse to accept, require the cessation of further communication, and to pre-emptively block communication for the purposes of direct marketing.
2. Recipients of direct marketing communications should be issued with opt-out instructions.
3. Senders of direct marketing communications must provide opt-out mechanisms for the recipients, at no additional cost.
4. Establishment of registry for pre-emptive blocks. However, an official registry coined the ‘Do not contact’ registry is yet to be established in terms of the CPA. However, the Direct Marketing Association of South Africa has such a registry. People can choose to ‘opt-out’ from receiving direct mail by going to www.nationalopt.co.za.
5. Consumers may not be contacted at home during prescribed periods. These times have been provided for by a notice under the Consumer Protection Regulations. They are Sundays or Public holidays; Saturdays before 09h00 and after 13h00; and all other days between the hours of 20h00 and 08h00 the following day.
All current consumers should provide confirmation that they wish to continue receiving direct marketing from the supplier. Without the existing customer confirmation, it is presumed that the supplier may not contact the customer, in other words if they don’t have your consent they are not entitled to contact you. Be warned – if a supplier has your details in a mass database they are entitled to contact you until you ‘opt-out’. For the opt-out or unsubscribe mechanism to be effective the supplier must respect the customer’s choice to opt-out.
The definition of direct marketing in the CPA is extremely broad therefore the interpretation of what direct marketing is, is a problematic one in practice. Here are a few examples compiled by academics, some of which are debatable and yet to be determined in a court of law :
It is important that suppliers know and understand the CPA provisions. If the suppliers marketing practices do not comply with the CPA, there is a risk that the transaction may not be enforced against the supplier’s customer. By choosing to use direct marketing, the supplier would also be mandated to provide a cooling-off period.
The consumer may cancel the transaction resulting from any direct marketing without any reason or penalty. This must be done within a period of 5 business days from the date of transaction. The goods must be returned to the supplier within 10 business days at the consumer’s expense. The supplier must then refund the consumer within 15 business days of the written notice of cancellation.
The CPA is therefore particularly relevant if you are a business relying on direct marketing. It is very important to know how to use direct marketing and more seriously, the consequences that follow.
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