Relief could be in sight for consumers tired of intrusive and unwanted calls from direct marketers. A proposed amendment to the Consumer Protection Act (CPA) seeks to create an opt-out registry, allowing individuals to block unsolicited marketing communications.
On 28 October, Minister of Trade, Industry, and Competition Parks Tau published the draft amendment to the CPA Regulations in the Government Gazette, inviting public feedback within 45 days.
In a media statement on 1 November, the ministry highlighted the growing problem of intrusive marketing, stating that consumers are increasingly bombarded with unsolicited messages. The proposed opt-out registry will require direct marketers to register and respect the preferences of consumers wishing to avoid these communications.
If the amendment is approved, consumers will be able to block unwanted electronic messages by completing a form that includes their identity number, full names, gender, citizenship, address, and contact details. Consumers will be required to ensure that their information is kept up to date to ensure the registry’s effectiveness.
The National Consumer Commission will oversee the opt-out registry, ensuring that the information collected is used solely for its intended purpose and protecting the confidentiality of personal data. According to the draft amendment, confidential information cannot be shared with third parties without consent, except where required by law.
Direct marketers will also have to register on the opt-out registry each year. In fact, they will not be allowed to contact any consumer for direct marketing and promoting any goods and services unless they have done so.
According to some of the stipulations set out in the draft, direct marketers will have to ensure their contact details are easily identifiable and must avoid sending messages from untraceable sources. Marketers cannot contact consumers who have opted out and must cleanse their databases every month to remove anyone who has registered a block.
Direct marketers will be required to pay a filing registration fee, starting at R2 452 this year. In 2025, the fee will increase to R2 574, with an annual renewal fee set at R1 930.50. For 2026, the filing registration fee will rise to R2 702.70, while the renewal fee will be R2 025.03.
If a renewal is filed late, a penalty will apply, calculated as the annual renewal fee plus an additional 75% of that fee. New tariffs will be published every three years.
The public has until 15 January 2025 to comment on the draft regulations. Written comments should be submitted to the Department of Trade, Industry, and Competition for the attention of Sibusiso Sasayi, Private Bag X84, Pretoria 0001, or emailed to SSasayi@thedtic.gov.za.
The draft amended regulations can be accessed here.
Information Regulator’s guidance note
At a press briefing in September, Advocate Pansy Tlakula, chairperson of the Information Regulator, addressed growing concerns about unsolicited electronic communications from direct marketers, acknowledging the public’s frustration with the rise in spam calls.
Earlier this year, the Regulator announced the drafting of a guidance note aimed at assisting both public and private entities in complying with the Protection of Personal Information Act (POPIA) when handling personal information for marketing purposes.
In June, the Regulator shared this draft with stakeholders in the direct marketing sector and key industry players. A stakeholder engagement session took place on 25 September to discuss the final version of the guidance note before its official publication.
The Regulator said some in the direct marketing sector have misinterpreted POPIA’s provisions on electronic communications, believing that telephone calls do not require consent. However, the Regulator clarified that phone calls fall under the definition of electronic communication according to POPIA. Therefore, any direct marketing conducted via phone must adhere to specific requirements:
- The marketer must lawfully obtain the recipient’s phone number.
- The initial call must seek consent for receiving marketing messages and specify the preferred communication method (such as SMS or email).
- The marketer must clearly identify the goods or services being promoted.
The Regulator emphasised that although direct marketing through phone calls is allowed, it must comply with POPIA’s consent requirements.
The SAIA has expressed the view that “the insurance sector is excluded from the scope of the Consumer Protection Act”, meaning that the draft amendments to the regulations under the CPA do not apply to direct marketers of insurance products.
What is Moonstone’s view on this?
The CPA excludes intermediary services regulated by another Act and makes some exclusions from the definitions of “services”, including advice as provided for in FAIS and the banking or similar financial services regulated by FAIS or the LTIA. This results in most financial services not being subject to CPA protections. This doesn’t mean that the amendments to the CPA cannot be worded in a way to include the marketing of financial products by means of direct marketing. It hasn’t done so up to now because of the direct marketing provisions in the General Code of Conduct. We’ll have to consider the final amendments when they appear before we can conclude they include or exclude it.
You will never be able to ‘opt out’ as the calls are made from different numbers. I’ve blocked so many numbers, just to reveive a call from another number again. What troubles me is where my details are obtained from as I’ve never given anybody permission to share my information. This is quite disturbing for me.