Mobile spam: businesses can be sued

“Even though there is no specific legislation that currently deals with this issue in South Africa, the provisions of data protection mechanisms can be found in the Constitution (section 14d), the Electronic Communications and Transactions Act (ECT Act – section 45 and 89), the National Credit Act (section 68 and 74(6)) and the Industry code of conduct,” said Brendan Hughes, senior associate of the Michalsons Attorneys.

Mobile Industry Briefing

Hughes was speaking at the Mobile Industry Briefing held on Thursday, 17 May 2007, at Sandton Sun & Towers in Johannesburg. The event was organised by BulkSMS.com to make businesses aware of the Wireless Application Service Provider Association (WASPA) regulations and promote best practice for mobile marketing campaigns.

“Anyone who sends unsolicited commercial communications to consumers must provide them with the option to cancel his or her subscription to the mailing list of that person, and with the identifying particulars of the source from which that person obtained the consumer's personal information, on request,” Hughes said, quoting Section 45 of the ECT Act.

The Constitution stipulates that everyone has the right to privacy, which includes the right not to have the privacy of their communications infringed.

Likewise, the National Credit Act says that any person who compiles ‘confidential information' pertaining to any person must retain the confidentiality of that information and must not release that information other than to an authorised party.

If a company cannot verify how it acquired a consumer's cellphone number then it is sending unsolicited SMS for commercial purposes. A consumer has a right to demand that their cellphone number be removed from that company's database. “Failure to stop sending unwanted SMS after the consumer has requested it could lead to a fine or a jail term not exceeding 12 months in terms of section 89(1) of the ECT Act,” Hughes warned.

No official figures

Currently, there are no official figures of mobile spam in SA, but data complied by WASPA shows that 1077 complaints were lodged between September 2005 and February 2007, resulting in 67 fines that cost guilty parties close to R1.5 million.

An anticipated legislation – the Consumer Protection Bill, 2006 and the Protection of Personal Information Bill, 2005 – that could provide adequate solutions to solving the problem are currently being drafted by the South African Law Commission in collaboration with the Department of Trade and Industry and the Department of Justice, respectively.

If everything goes well, these bills should be ready in about 12 months.

“According to new WASPA regulations which took effect in March this year, each initial unsolicited message should carry an opt-out option such as ‘Reply Stop to Opt out',” said Dr Piet Streicher, MD of BulkSMS, adding that businesses and organisations have three months to comply, or face the music.

To avoid trouble with the law, Hughes advised businesses to build a consent database – a list of all consumers who willingly agree to receive commercial messages that promote a certain product for instance.

“Assess the manner in which your organisation handles personal information, implement or review data management processes and policies for direct SMS communications.

“Implement EU approved contractual clauses when appropriate and consider merits code of conduct to allow for a measure of self-regulation and exemption from criminal liability.”

Act promptly

Dr Streicher said that wireless service providers should inform their clients of legal requirements and best practices, and act promptly when information providers contravene WASPA code of conduct.

To businesses and organisations, he said: “Adopt best practices such as opt-in and opt-out requirements as per WASPA code of conduct.”

Furthermore, he reminded the media that it is their duty to inform consumers of their rights and hold role players accountable for any ‘abuse of responsibility'.

Lastly, he said that consumers who are fed-up with unsolicited messages should, either, report it to www.SMScode.co.za (supported by Vodacom, MTN and Cell C), get a WASPA complaint form, or apply for amendment to the WASPA code of conduct.