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Marketing news

Will POPI become a dirty word for marketers?

The Protection of Personal Information Act No. 4 of 2013 (POPI) was signed into law in November. It comes at a time when marketing has just entered the promised land of customer profiling, behavioural advertising, big data, and multiple marketing channels.

(Image: Wikimedia Commons)
The volume and quality of personal information available out there is unprecedented. And with more and more prospective customers using social media and other online tools, it just keeps getting better for marketers.

Consumers also stand to benefit from new sophisticated marketing methods. More and better products and services, tailored to their individual tastes and preferences. Marketing messages that are relevant, timely, and responsive.

Many commentators have said that the premium to be paid in this new information-laden marketplace is privacy. As people freely share more and more information about themselves and their lives on Facebook, Twitter and personal blogs, surely their expectations of privacy need to change?


But privacy, like freedom, is fundamental to our happiness as human beings. It helps us carve out a space away from the hustle and bustle of modern living, where we can have relationships, develop weird and wonderful interests, and express points of view without exposure, interference or censure.

The right to privacy is often difficult to define. We react strongly to media reports about tabloids tapping phones or US government agencies monitoring our online activity, without really understanding why and where the real harm resides for us.

Privacy is often confused with secrecy. The argument being that when we freely expose our personal or private information, we give up the right to have that information protected against further exposure or use.

But that theory of privacy is no longer viable. To participate in modern life effectively, we have to share information about ourselves with others. Instead of looking for secrecy, we want to retain some level of control over what our information is used for and by whom.

The legal rights and protection we want are threefold: firstly we want to be able to share our information without giving up control over it; secondly we want others to process our information fairly, reasonably and securely; and thirdly, we want to have recourse against them when they don't.

Rights are not absolute

At the same time, we can't expect these rights to be absolute. They need to be balanced against our collective interest in allowing information, including personal information, to flow freely so we can all reap the benefits of the modern economy.

With the introduction of POPI, the legislature appears to have got this balancing act right. Following best practice from countries in the EU, Australia and Canada who have established privacy laws, we now have a law in SA which covers most of the bases, with the rest intended to be filled in by more specific regulations and industry codes.

Coming off the back of the Consumer Protection Act, POPI could be seen as yet another hurdle for the sales and marketing departments. It will no doubt bring its fair share of red tape and compliance is going to require some proactive effort. But if the ultimate objective of the new law is kept in mind - creating a market where people feel safe and secure to share their personal information with companies and organisations that can be trusted with it - the benefits far outweigh the costs.

About Steve Ferguson

Steve Ferguson is an attorney who specialises in the field of intellectual property and IT law. Steve has been involved in the tech and media industries since 2003 and has helped a number of exciting businesses, including Bizcommunity, navigate the legal issues facing them in the digital age.
Werner Smit
Dear mr Furguson,

Thank you for imposing your opinion on us regarding what is in our collective interest. I hope however, that you will entertain the possibility that marketers are in fact not concerned with what is in the best interest of the public/consumer, but rather with maximising profit for their clients. Business is after all just business.

Accepting this, we are suddenly faced with a number of additional issues concerning the process of balancing our rights to privacy and freedom. First, if we consider these two rights together, someone (a marketer, for example) who infringes on my privacy should do so only with my freely given, informed consent. Thus, given the large-scale data harvesting (private and public) methods employed to tailor/customise the information we're presented with, I can't help but wonder how free my choices really are.

There's this vicious cycle whereby some company with a massive advertising budget can tell me what I want to buy, and then tailor my personal marketing experience according to my (imposed) habits. This method neglects the possibility that I might want to change my mind at some point. It also assumes that our current consumer culture is somehow a good thing that deserves to be protected.

You referred to the CPA too. The CPA primarily aims to address the massive imbalance in (financial) power between individual consumers and big corporates. The act also addresses the issue of privacy by prohibiting negative option marketing. In case you don't know, negative option marketing is a tactic employed on websites or in standard term contracts in terms of which the default position is that the consumer consents to his information being sold, or to being rung up by telephone marketers at all hours of the day.

And these guys are relentless... I imagine you know about the whole STRATE privacy issue. STRATE holds the personal information of all JSE shareholders. They then sell this information to anybody who is willing to pay for it. So, the moment you have some extra cash to invest in shares you suddenly start getting calls from all sorts of people trying to sell you more stuff. I would consider this an invasion of my privacy, but the market is set up in such a way that I MUST consent to all the terms and conditions of STRATE and the JSE otherwise I can't trade on the exchange. This can hardly be considered to be consent...

The purpose of legislation like POPI and the CPA is thus to allow consumers to freely participate in commercial life without being exploited by big players in the economy.
Posted on 10 Dec 2013 18:27
Steve Ferguson
Hi Werner, you are expressing a common concern we all have about the dark side of marketing, the covert online profiling and the intrusive calls and messages. Unfortunately there is always going to be that.

POPI gives us the legal rights and remedies, but like the CPA its effectiveness is going to depend largely on the competence and efficiency of the regulator. Its probably also going to take a few more years before the practical aspects of POPI are bedded down and the regulator is able to really bare its teeth.

But I am hoping that marketers see the issue as being more than simply avoiding the threat of administrative fines and civil suits, and that they see that we want to engage, we just don't want to lose control over our information and rights in the process.

Privacy is a tricky topic and I am sure there is going to be a lot more debate around what it means to different people. Thanks for your comments.
Posted on 12 Dec 2013 06:19
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Read more: POPI, Popi

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