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POPIA and the role of consent for direct
Commercial October 2018
marketing

“I have purchased some electronic products from a local store. They asked me
for my contact details supposedly for warranty purposes on the product. Now
they keep sending me SMS’s and emails to market their products. Surely they
must first ask to me before they can do this?”

The Protection of Personal Information Act 4 of 2013 (“POPIA”) aims to protect
your constitutional right to privacy by ensuring that your personal information
is processed in a manner that ensures its confidentiality and that your privacy
is respected. Although the Act has not yet come fully into operation, it is just a
matter of time before it fully applies.
Under POPIA consent plays an important role. On the one hand, consent is
required to ensure that your personal information is protected and that
individuals and/or entities (“responsible parties”) do not process your personal
information without your consent. It also aims to ensure that a responsible
party cannot market their products or services directly to you if you have not
consented to such marketing.
Section 69 of POPIA deals with consent for direct marketing purposes by way
of unsolicited electronic communications such as automatic calling machines,
facsimile machines, SMSs or electronic mails. It determines that if you are not
the responsible party’s customer and you have not previously withheld consent,
the responsible party has a once-off opportunity to send you a request for your
express consent to allow the responsible party to use your personal information
for direct marketing purposes. In practice, this is usually a message informing you
about the products and/or services the responsible party would like to market
to you and which requests you to consent thereto. This once-off message should
not be of a marketing nature as such a message would violate the general
prohibition, and should merely be of an informative nature.

Once you consent/opt-in, the responsible party will be entitled to use your
personal information for direct marketing purposes within the consent’s
parameters. You should however be able to opt-out from continuing to receive
such direct marketing at any time. For a responsible party to obtain the informed
consent required by POPIA, the responsible party must obtain such consent

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