Continuing advances in technology have allowed consumers more freedom in how they connect, interact and transact. The ripple effect of this means that the gate has been opened to non-consensual information sharing and unsolicited direct marketing to consumers.
Direct Marketing is defined as follows:
Approaching a person, either in person or by mail or any other electronic means for the direct or indirect purpose of promoting or offering to supply any goods or services to that person.
Fortunately, the Consumer Protection Act (CPA) has now put measures in place through which consumers can empower themselves with regard to what is deemed Direct Marketing.
Section 11 of the CPA stipulates that every person has the right to pre-emptively block or refuse any communication that in its nature is for the sole purpose of direct or indirect purpose of the promotion or offer to supply goods or services to the person.
If a consumer has been contacted for the purpose of direct marketing as contemplated, the consumer may thereafter demand that the supplier or service provider who initiated the communication desist from any further communication. Each service provider who conducts direct marketing must have sufficient procedures in place to facilitate the receipt of demands from consumers to cease communication.
It is also important to note that no entity engaging in direct marketing may charge a consumer a fee for making a demand to stop communication or for registering a pre-emptive block, this could possibly mean that the cost of sending an SMS to opt out of receiving direct marketing could be recovered from the person making the unsolicited communication.
Section 16 of the CPA further affords consumer rights with regard to engaging in transactions through direct marketing. The section stipulates that a consumer may cancel a transaction concluded through direct marketing without reason or penalty. All the consumer need do is furnish the supplier with written notice within 5 business days after the date of concluding the transaction or receiving the goods (whichever is the late date) that they wish to cancel the transaction.
The supplier, in the event of such cancellation, must refund to the consumer any payment received within 15 business days of receipt of the notice of termination or upon return of any goods from the consumer.
Any person who engages in direct marketing to consumers must inform the consumer in the prescribed manner of their right to rescind the transaction.
The CPA has further set out specific times during which consumers may not be contacted for the purposes of direct marketing. A supplier may not engage in any form of direct marketing to consumers on Sundays or public holidays, Saturdays before 9h00 and after 13h00 and all other days between the hours of 20h00 and 08h00 the following day except to the extent that the consumer has expressly agreed to be contacted outside of the prescribed times.
Should a consumer feel that a supplier or service provider has breached any of the aforementioned provisions of the CPA, they are entitled to lodge a formal complaint with the National Consumer Commission or the now accredited Consumer Goods and Services Ombudsman.
Notwithstanding the foregoing, it is a known fact that many service providers who engage in direct marketing continue to operate in breach of the provisions of the CPA and continue to pester consumers with ongoing unsolicited communication. It, therefore, falls back onto consumers to actively pursue complaints against such services providers in order to stem the tide.
ABOUT THE AUTHOR
Carmen Ronne is currently employed as a legal advisor with SEESA Consumer Protection and POPI at our Durban office and has been in this position since 2011. She was sworn in as an Attorney on 17 August 2007. Prior to joining SEESA, she worked as a professional assistant with a number of Private Law Practices specialising in civil litigation and Sectional Title/ Body Corporate Management.