Legal landscape for spamming is set to become more rigorous

With the Protection of Personal Information (PPI) Bill due to be enacted soon, the legislation prohibiting this practice is thankfully once again receiving attention.

"In this regard, offenders should note that the legal landscape for spamming, while being consistent with provisions that have already been in place under the Electronic Communications and Transactions Act, 2002 (ECT Act) for some time, looks set to become more rigorous. There is every indication from policy makers and government that compliance with the CPA and the PPI Bill, when it is eventually enacted, will be far more vigorously enforced," notes Nick Altini, director and national head of the competition and regulatory practice at Cliffe Dekker Hofmeyr.

First time that legislature addresses spam

"The ECT Act was ground-breaking in that, for the first time, the legislature addressed the issue of spam. The ECT Act prescribes that, in the case of electronic unsolicited messages, such as spam e-mails and SMSes, the sender must include in the message an option for the consumer to cancel their subscription to the mailing list - in other words, to opt out. In addition, the ECT Act provides that, if the consumer requests it, the parties sending the message must disclose the source from which that person obtained the consumer's personal information," he explains.

Altini says that failure to comply with these provisions actually constitutes a criminal offence. "The CPA went further by providing consumers the right not only to ask direct marketers to desist from engaging in any direct marketing practice (whether electronic or otherwise), but also to pre-emptively block any such communications, other than personal approaches.

"The CPA is also intent on creating a national registry of pre-emptive blocks and creating a regulatory regimen in terms of which a direct marketer simply will not be able to send direct marketing communications to a consumer unless they have, post 1 April 2011, first obtained the consumer's consent to do so - which only applies to existing customers and is subject always to the right of the consumer to opt out at a later stage.

A degree of overlap with CPA

Alternatively, the direct marketer must have first checked with the national registry that the consumer has not registered a pre-emptive block against the particular mode and type of direct marketing, or the direct marketer itself. However, this national registry has not yet been created. "The PPI Bill, due to be enacted soon, also seeks to regulate the issue of direct marketing and unsolicited communications. In this case, the bill refers specifically to electronic communications and so there is only a degree of overlap with the provisions of the CPA, but not a complete concurrence," Altini says.

"The draft bill does contemplate that the provisions of the ECT Act described above will be repealed and replaced under the bill. What the bill provides is that it will simply be illegal for a direct marketer to seek to engage in direct electronic marketing (which includes by automated calling machine, fax, SMS or e-mail) unless the data subject has given prior consent to the activity and/or the data subject is an existing customer of the marketer.

"In this case, the term 'existing customer' is defined and the bill makes it clear that one can market directly to an existing customer if the contact details of that customer have been obtained in the context of a sale of a product or service for the purpose of marketing similar products or services. The customer must also be given a reasonable opportunity to object, free of charge, to such use of their electronic details at the time when the information was collected and afterwards, in each and every electronic communication sent to the data subject for the purposes of marketing," he explains.