In 2020, Everlytic and Elizabeth from Novation Consulting hosted a POPIA Webinar Series to unpack the legalities of the POPIA legislation that will be enforceable in South Africa from 1 July 2021. In this POPIA Q&A blog series, we share some of the questions we received during the three webinars and the answers Elizabeth provided. This blog covers the questions we received on getting consent for direct marketing.

POPIA Q&A: Getting Consent for Direct Marketing | Direct Marketing | Email Subscription on cell phone

Getting Consent Q&A:

Permissions can’t be hidden in your T&Cs or privacy notice. It must be outside of those documents. People have to explicitly tick a box or something that makes it obvious that the person is opting in to your communications. You must also specify what type of communications they receive and on what channel.

Electronic direct marketing (automatic calling machines, facsimile machines, SMSs, emails, push notifications, or in-app direct messages – like a ‘DM’ on Instagram) requires consent before you send marketing.

Telemarketing, on the other hand, depends on the context. Sometimes, under POPIA, you can do direct marketing telephonically without consent. To not require consent, the data subject’s personal information must have been collected for the original purpose of telemarketing to that data subject. Here, the legal justification for processing the data subject’s personal information under POPIA can be the legitimate interest of the responsible party.

Alternatively, you will not need consent, if telemarketing to the data subject was not the original purpose of collecting the data subject’s personal information. In this case, as long as telemarketing to the data subject is compatible with the original purpose that the data subject’s personal information was collected, you do not need consent.

Yes, but you can’t hide the consent to direct marketing in the competition terms. You must be upfront about it, saying something like: “Subscribe to our newsletter and stand a chance to win an iPad.” Otherwise, ensure you have an opt-in checkbox in the competition form so your participants can choose to receive direct marketing if they want.

Just adding the direct marketing consent into the terms and conditions is not permitted.

You’ll need to understand the nature of the new company. For instance:

  • Will they still be functioning as separate brands? If so, you don’t need to consolidate – both databases can keep functioning in their individual silos.
  • What communication are you sending your contacts about the merger? You can merge lists if you’re open and clear about the merger, that the branding will be changing (if relevant), and that they continue to have the chance to unsubscribe.
  • Think about what you’re going to do when one person is subscribed to both databases, but with different data – what will the rules be in terms of overriding data and data quality?

It depends how similar these products are. If we’re talking a broad category like food where you want to market apples to your oranges database, then no, you won’t need separate consent. But, if you’re talking about apples and insurance, it’s best to get consent per product.

It’s best to build a preference centre, where people can customise the content they receive from you.

There are many ways of proving who consented to what. In terms of the electronic communications and transactions act and court cases about this, you have a right to assume that the person whose signature is at the bottom of an email is the person who sent the email.

But, if you want to be certain, you can use two-factor authentication, sending them a link in an email that they must click to confirm that this person is who they say they are.

The rule of thumb when trying to decide if you need additional consent for a different product under the same brand is: will this person be surprised to receive this messaging?

Elizabeth from Novation Consulting suggests that you can probably argue that buying a property and financing that property could go under the same consent, as most people need home loans to finance properties that they purchase.

It’s unclear exactly how this must happen, but what we do know is that you must be clear on which channels you’ll be using. It’s a good idea to give people the option to select the channels they prefer, so they’re not stuck with an all-or-nothing subscription. You’re less likely to lose subscribers if they can tailor their subscription to their preferences.

You can do this, but the consent for direct marketing must still be explicit – many companies do this with the use of a checkbox on the form.

For more guidance, watch our POPIA webinars, listen to our POPIA podcasts, read our POPIA guide, or chat to a POPIA expert, like Elizabeth de Stadler from Novation Consulting.

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