THE GUNSTONS BLOG

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What to do if you received an SMS from a political party last week.

The initiation of the Consumer Protection Acts opt-out registry will allow South African consumers to permanently opt-out of all unsolicited marketing communications. This in and of itself is a giant step forward for consumer rights. In the week leading up the 2011 municipal elections, a furor erupted on social networking sites, which had consumers up in arms over having received unsolicited SMS from both the ANC and the DA.

In our earlier reports on the CPA we mentioned that direct marketing via SMS and E-Mail has to both be solicited by the receiver of the communication and also carry an opt-out mechanism in the event that the recipient changes their mind at a later stage.

Both the ANC and DA appeared to have gained unsolicited access to databases of cellphone numbers and neither of them provided the option to opt-out.

One of the ANC SMS this week, Make your vote count. Please vote ANC and build a Safer, Livable and Prosperous City for all South Africans. Together lets build better communities. VOTE ANC!

DA SMS (insert relevant city: Joburg, Cape Town, Durban etc. into the blank space), Today can be historic. Your vote can win __________. So vote and vote DA. Voting stations open until 7pm. Call 0861225532 for more info. Helen Zille.

The question being asked is, did they violate the terms of the CPA and how does this affect other marketing behavior in South Africa?

It is important to note that before the CPA came into effect, the Electronic Communications and Transactions Act existed (and still does) to protect consumers from unsolicited goods, services or communications under section 45 of the Act. When unsolicited communication is made, the marketer must by law provide the recipient with the choice to opt out of further communication and remove their contact details from any mailing or subscription list they are a part of whether they originally gave permission to be marketed to or not.

Under this Act, a self-regulating body called WASPA (Wireless Applications Service Providers Association) was set up to monitor marketing communications via mobile devices (mostly through SMS campaigns). WASPA actually prohibits spam, which is identified as any communication that was not requested by the receiver or where the recipient does not have a direct commercial relationship (within the last six months) with the marketer where marketing communication would be deemed reasonable.

Unfortunately for you, if you begrudgingly received an SMS from a political party, the Electronic Communications and Transactions Act can’t actually help you as it pertains to “unsolicited commercial communications.” Neither party is directly asking you to buy a product, make a donation or offering to supply commercial goods or services. The ECTA doesn’t make provision for unsolicited political communications.

In fact, the Consumer Protection Act exists to protect consumers from suppliers and vice versa. Suppliers of commercial goods and services. At this stage, the CPA will not be applicable to political campaigning.

So we look further as there is another issue at hand here, the issue of privacy.

The reason the ECTA and the CPA came into existence in the first place was the underlying principle affirmed in our Bill of Rights that all South African citizens have the right to privacy. It is here that political parties must be called on their behavior not necessarily for obtaining contact information, but for delivering communication without providing the recipients with any mechanism to opt out effectively making all recipients subject to political ?spam? at the whim of the political party in question.

Currently there are no constitutionally mandated bodies or bodies mandated by legislation to regulate political spam. If you feel sufficiently aggrieved by receiving political spam, perhaps an appropriately worded letter to the head of the party would go some way to resolving the issue. If that doesn’t work, and if you feel strongly enough about it, you may wish to approach the High Court, individually or as a group, for an order declaring the sending of political sms’s to be unconstitutional and interdicting the relevant parties from sending further sms’s.

If you are receiving unsolicited commercial communication, the channels are more transparent and the code of conduct much stricter and in theory, you should have an easier time removing unwanted spam in your life.

Do, however remember two things:

  • The CPA came into effect on 1 April 2011 and the development of the national opt-out registry has only just gone out to tender. It will still be a few months before that becomes accessible to the general public.
  • You also have to opt out of communication with each separate database that has acquired your details. You will only really know this once you have been sent an unsolicited message, from a company or supplier you have not received communication from before. Your details may be on the opt-out registry but you will have to assign individual companies and marketing bodies to your details to prohibit each individual marketer from contacting you.

Until then, make use of the opt-out mechanisms in place and regulated by WASPA and when signing up for a service or good make sure you specify up front that you do not want to receive marketing communication from that supplier, unless of course you do want to hear about future product information in which case know that you can opt out at any point in the future.

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