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The Span of Spam

1 September 2013

Without Prejudice

Spam refers to commercial communications that usually take the form of unsolicited electronic commercial communications, such as bulk email and SMS (electronic spam) but may also take the form of unsolicited hardcopy such as bulk letters, flyers and pamphlets (paper spam).

In South Africa there is no single piece of legislation that applies to spam generally. Currently, electronic spam is governed by the Electronic Communications and Transactions Act (ECTA). Since its promulgation there have been further Acts and Bills that deal with both electronic and paper spam.

Under ECTA
ECTA applies to electronic communications and transactions and, as such, governs electronic spam. Currently, ECTA requires an opt-out regime where a receiver of electronic spam must be given the option to cancel his or her subscription to that electronic mailing list.

Failure to provide a consumer with an opt-out option or to ignore a request to stop unsolicited commercial communications is an offence under ECTA and, on conviction, the offender is liable for a fine or imprisonment for a period not exceeding 12 months.

Under the Consumer Protection Act
The Consumer Protection Act (CPA) deals with spam through its direct marketing provisions in sll, s12, s16 and s32.

In terms of the CPA, every consumer has a right to privacy, which includes the right to require another person to discontinue any direct marketing communications. In this regard a consumer who has been approached via direct marketing may, within a reasonable time, demand that such communications cease. A consumer may not be charged a fee in order to request or stop any direct marketing communications.

In addition to this, the CPA makes provision for consumers to block any communications or parts of communications pre-emptively by registering a block on a National Register against that type of marketing. The National Register is not yet in existence, but the Direct Marketing Association opt-out register can be used.

The provisions regulating direct marketing communications will cover paper spam and, where applicable, electronic spam, and similarly to ECTA, the CPA require that an opt-out regime be followed. While it is not a criminal offence in terms of the CPA to fail to abide by a consumer's demand in respect of spam, this conduct would be prohibited and may carry with it an administrative fine, which may not exceed the greater of R1m or 10% of the transgressor's annual turnover during the preceding financial year.

Under POPI
The Protection of Personal Information Bill (POPI) is currently in its 9th draft and is awaiting approval from the National Assembly, prior to being sent to the President for his assent. It will change the landscape for both electronic and paper spam.

Where direct marketing takes the form of electronic spam POPI requires that, subject to a narrow exception, a consumer must have opted in to receive such communication. In this regard, a consumer may be contacted once in order to obtain opt-in consent.

The consumer's opt-in consent is not required if the unsolicited electronic communication is directed at an existing customer for the purposes of marketing the supplier's own similar goods and services. The consumer must, thereafter, be given the opportunity to opt out on the occasion of each communication. When direct marketing takes the form of paper spam, POPI requires that a consumer must have opted in to receive the communication.

As POPI is not yet promulgated, there are no precedents in the form of rulings, court decisions or regulations, and as such there is currently no unequivocal interpretation of its provisions and requirements. Over time, the courts or the Information Regulator, once established, will interpret the provisions of POPI.

Until such time as POPI comes into effect, it is legal to send both electronic and paper spam, unless that person has specifically opted-out. Depending on the nature of the communications, failure to comply with these requirements could be an offence.

Once POPI is promulgated, both paper and electronic spam will require opt-in consent.

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