As consumers, we all receive those untimely phone calls which start with “Hello sir, can I offer you product X. It will only take about 5 minutes of your time” This is because consumers fall victim to direct marketing by telemarketers daily. It is important for consumers to know their rights when dealing with direct marketing and consumers should not merely “go with the flow” in accepting the terms and conditions that are put to them.
According to the Consumer Protection Act No. 68 of 2008 (“CPA”) direct marketing means to approach someone, either in person, by mail or electronic communication (which includes telephone, fax, SMS, wireless computer access, e-mail or any similar technology or device) for the direct or indirect purpose of:
- promoting or offering to supply, in the ordinary course of business, any goods or services to someone; or
- requesting someone to make a donation of any kind for any reason.
The concept of direct marketing, is often a direct breach of the consumer’s right to privacy as set out in the Bill of Rights and contained in the Constitution of the Republic of South Africa, 1996. The CPA restricts suppliers in an attempt to safeguard the rights of consumers and protect consumers from falling victim to direct marketing strategies.
Section 11 of the CPA imposes restrictions on suppliers when engaging in direct marketing, it also provides various mechanisms available to the consumer to block and/or restrict any unwanted communications. This section stipulates that the right to privacy, includes the right to refuse to accept, and requires a person to discontinue and/or to block any approach or communication if that approach or communication is primarily for the purpose of direct marketing.
For the purposes of sections 11(1) and 11(2) of the CPA, if a consumer has:
- informed the direct marketer; or
- placed any communication or sign on a post box, or any other container for mail,
indicating that he or she does not wish to receive any material related to direct marketing, then the direct marketer:
- may not place or attach any material primarily aimed at direct marketing in whichever physical format, on or near the postal/post office box, container, or in, on or near the fence, gate or any other part of the consumer’s premises;
- must provide the consumer with written confirmation of the receipt by the direct marketer of the notice given by the consumer wherein the consumer expressly denies the direct marketing; and
- the display of the phrase “no adverts” or the use of an image or a similar reproduction thereof is sufficient to meet the requirements as set out above.
The consumer may further demand that the supplier desist from initiating any further communications in future and the consumer may not be charged for making such a demand. According to Government Notice No. 34180 dated 1 April 2011 published by the Minister:
- consumers may not be contacted on Sundays or public holidays;
- consumers may not be contacted before 09:00 and not after 13:00 on Saturdays; and
- consumers may not be contacted on any other day between 20:00 and 08:00 except where the consumer has expressly or implicitly requested or agreed thereto.
It is crucial for consumers to be aware of their rights in terms of the CPA and the mechanisms available to them to enforce such rights. Consumers have the right to refuse unwanted direct marketing such as telephone calls, SMS’s, e-mails or letters and once the consumer has exercised this right by way of “opting out”, the consumer may not be charged for making such a demand. Consumers should be wary of the terms and conditions that they agree to, as blindly agreeing that suppliers may contact the consumer for marketing purposes, could result in ongoing disturbance for the consumer.
29 October 2018