National Credit Act, Consumer Protection Act, POPI Act – impact on direct marketing

POPIA, which is coming into effect July 2021 states that if the data subject is not a customer of the responsible party, the data subject must consent to electronic communication. POPIA does not require consent for direct mail.

Unsolicited electronic communication is not only addressed in POPIA, but also in the Consumer Protection Act 68 of 2008 (CPA), the National Credit Act 34 of 2005 (NCA), and the Electronic Communications and Transactions Act 25 of 2002 (ECTA).

Direct mail consent is not addressed in POPIA but was addressed in the Consumer Protection Act of 2008 when opt out became law. Prior to that, the National Credit Act of 2005 forced credit companies to allow customers to opt out of telemarketing, names sold for marketing lists and mass email/SMS but this did not directly impact direct mail.

Companies used this opportunity to allow customers to choose to receive his/her credit agreement documents and statements in person, mail, fax, email or webpage. Most companies offering credit have been asking for consent to the different channels when signing credit agreements for statement delivery as a result of this act. However once POPIA is in effect, credit providers will also need to comply with the other requirements defined within POPIA for electronic communications.

The Consumer Protection Act 68 of 2008 (CPA) seeks to regulate such communication by advertisers by empowering the consumer to restrict unwanted direct marketing. Once a consumer has been contacted for the purposes of direct marketing such a consumer may demand, during or within a reasonable time after the communication, that the person who initiated the communication, desist from any further communication. So this act is very much an opt out system.

The CPA’s direct marketing provisions in terms of opting out and the NCA’s standards of selecting how they are communicated with when signing a credit agreement and opting out of certain communication channels and POPIA’s focus on electronic channels have similar goals, are not inconsistent with each other, and consequently have to be read together.