Extract from South Africa’s new Consumer Protection Act of April 2011, particularly dealing with regulations on the consumer’s right to restrict unwanted direct marketing, and the prohibited time for contacting consumers.

 

This impacts everyone sending email or sms marketing in particular – please also note the permitted send times for any direct marketing below:

 

11. Right to restrict unwanted direct marketing
(1) The right of every person to privacy includes the right to
(a) refuse to accept;
(b) require another person to discontinue; or
(c) in the case of an approach other than in person, to pre-emptively block, any approach or communication to that person, if the approach or communication is primarily for the purpose of direct marketing.
(2) To facilitate the realisation of each consumer’s right to privacy, and to enable consumers to efficiently protect themselves against the activities contemplated in subsection (1), a person who has been approached for the purpose of direct marketing may demand during or within a reasonable time after that communication that the person responsible for initiating the communication desist from initiating any further communication.
(3) The Commission may establish, or recognise as authoritative, a registry in which any person may register a pre-emptive block, either generally or for specific purposes, against any communication that is primarily for the purpose of direct marketing.
(4) A person authorising, directing or conducting any direct marketing
(a) must implement appropriate procedures to facilitate the receipt of demands contemplated in subsection (2); and
(b) must not direct or permit any person associated with that activity to direct or deliver any communication for the purpose of direct marketing to a person who has
(i) made a demand contemplated in subsection (2); or
(ii) registered a relevant pre-emptive block as contemplated in subsection (3).
(5) No person may charge a consumer a fee for making a demand in terms of subsection (2) or registering a pre-emptive block as contemplated in subsection (3).

 

PROHIBITED TIME FOR CONTACTING CONSUMERS

 

1 For purposes of section 12(2) of the Act, the following are days, dates, public holidays or times of days when a supplier may not engage in any direct marketing directed to a consumer at home:
(a) Sundays or public holidays contemplated in the Public Holidays Act, 1994 (Act No. 36 of 1994);
(b) Saturdays before 09h00 and after 13h00; and
(c) all other days between the hours of 20h00 and 08h00 the following day, except to the extent that the consumer has expressly or implicitly requested or agreed otherwise.
2 Direct marketing may not be timed to be delivered to the consumer during the prohibited times referred to in item 1 above unless expressly, in writing, agreed to by the consumer.
3 A direct marketer is not in breach of item 1 if it has sent out the direct marketing within the period provided for in item 1, even if the consumer received the direct marketing outside of the aforementioned period, but the onus to prove that the direct marketing was dispatched during the allowed period rests fully on the direct marketer.

 

Download the full Consumer Protection Act here.

 

This article is a general summary and should not be construed as legal advice or as an exhaustive overview.

Consumer Protection Act Direct Marketing South Africa