The Information Regulator of South Africa has issued a guidance note to support organisations in complying with the POPIA when engaging in direct marketing activities. This guidance underscores the importance of safeguarding data subjects’ personal information while ensuring organisations operate within the legal framework for marketing practices.
Why this guidance note on direct marketing matters
Direct marketing remains a cornerstone of business strategy, but it involves processing personal information regulated under POPIA. The guidance note helps organisations:
- Navigate legal complexities: Clarifies requirements for direct marketing under POPIA.
- Safeguard consumer rights: Balances marketing efforts with the constitutional right to privacy.
- Avoid legal penalties: Provides actionable insights to minimise the risk of non-compliance.
Failing to adhere to this guidance note can result in reputational damage, penalties, and legal challenges.
Who does the guidance note apply to?
The guidance note applies to all responsible parties involved in direct marketing, including:
- Organisations: Retailers, service providers, and subscription-based enterprises.
- Marketers: Organisations using electronic or non-electronic communication for outreach.
- Operators: Third parties handling customer data for marketing purposes.
Key sections of the guidance note
Under POPIA, direct marketing practices are strictly regulated to protect the personal information of data subjects. These sections address both electronic and non-electronic marketing channels.
Firstly, POPIA distinguishes between unsolicited electronic communication (e.g., emails, SMS, phone calls) and non-electronic methods (e.g., post, hand-delivered mail). For unsolicited electronic communication, businesses must obtain explicit consent from data subjects before sending marketing messages unless the recipient is an existing customer, in which case specific conditions apply.
Consent is at the heart of POPIA compliance. Organisations must use approved mechanisms, such as Form 4, to ensure that consent is voluntary, informed, and specific. Additionally, every communication must include a clear opt-out mechanism, enabling data subjects to withdraw consent easily at any time.
For businesses seeking to rely on legitimate interests rather than explicit consent, a legitimate interest assessment (LIA) must be conducted. This three-stage test requires organisations to define the purpose of processing, demonstrate its necessity, and balance their interests against the rights of the data subjects. Without meeting all criteria, legitimate interests cannot be used as a lawful basis.
Openness is another critical requirement. Responsible parties must provide clear privacy notices tailored to the method of communication. These notices must outline why data is being collected, how it will be used, and inform recipients of their rights to object or lodge complaints.
Finally, organisations must maintain records of all consents, objections, and opt-outs. Record keeping includes creating and updating a “do-not-contact” database to ensure individuals who have opted out are not contacted again. Failure to adhere to these requirements can result in significant penalties and reputational damage.
Compliance checklist
| Compliance step | Action |
|---|---|
| Obtain and manage consent | Use Form 4 or similar tools to secure explicit, informed consent for direct marketing. |
| Keep detailed, retrievable records of consents. | |
| Maintain openness | Provide clear and accessible privacy notices. |
| Tailor notices to the communication method (e.g., verbal for in-person, links for emails). | |
| Implement opt-out mechanisms | Include opt-out options in every direct marketing communication. |
| Maintain and regularly update a do-not-contact database. | |
| Conduct legitimate interest assessments (LIA) | Conduct a purpose test to define the reason for processing data. |
| Administer a necessity test to ensure processing is essential to achieve the purpose. | |
| Conduct a balancing test to weigh business interests against individuals’ rights. | |
| Audit practices | Review marketing processes to identify gaps in compliance with POPIA. |
| Develop internal policies | Create policies addressing consent, opt-out mechanisms, and data processing. |
| Train personnel | Provide training on POPIA compliance and their role in direct marketing. |
| Engage legal experts | Partner with professionals to review contracts, consents, and marketing materials. |
How ITLawCo can help
At ITLawCo, we provide end-to-end support for your direct marketing compliance needs:
- Customised policies and training: Tailored guidance to align with your business practices.
- Audits and assessments: Comprehensive reviews to ensure adherence to POPIA.
- Ongoing support: Access to expert advice for navigating evolving regulatory landscapes.
Let us help you protect your business while building trust with your customers. Contact ITLawCo today for tailored solutions.