Data Protection in South Africa

Electronic marketing in South Africa

Direct marketing by means of unsolicited electronic communications is regulated by POPIA whereby the opt-in regime has taken effect. Accordingly, under POPIA, the processing of a data subject's personal information for the purposes of direct marketing by means of unsolicited electronic communications is prohibited unless the data subject has given its consent, or the email recipient is an existing customer of the responsible party. A responsible party may only approach a data subject once in order for the data subject to opt in to receive marketing information. The Regulations to POPIA contain a prescribed form to be used when seeking this opt-in.

When sending emails to a data subject who is an existing customer:

  1. the responsible party must have obtained the details of the data subject through a sale of a product or service;
  2. the marketing should relate to its own similar products or services; and
  3. the data subject must have been given a reasonable opportunity to opt out, free of charge, of the use of its personal information for marketing when such information was collected and on each occasion that marketing information is sent to the data subject, if the data subject has not initially refused the use of the personal information for electronic marketing purposes.

Direct marketing that is not by electronic communications (i.e. telephone or in-person marketing) continues to be regulated by the Consumer Protection Act, which requires the consumer to have an opportunity to opt out of receiving direct marketing.

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