South Africa has long been the wild west for direct marketers. Large databases of customer information are still being traded (often for startling sums of money) with no regard for the privacy of consumers (data subjects) or their right to know who has their personal information and what is being done with it. As technical tools evolve the invasion of personal privacy increases and there is a very real (but impotent) sense with consumers that their personal information is being traded and they are powerless to prevent it.
Against this background we have the introduction of Regulation 6 of the Protection of Personal Information Act, which in turn requires companies to follow the format of form 4 when asking for direct marketing consent. Form 4 requires that the following text be used when asking for direct marketing consent:
I, (full names of data subject) hereby:
¤ Give my consent.
To receive direct marketing of goods or services to be marketed by means of electronic communication.
You can hardly imagine a less enticing way to ask for direct marketing consent. Direct marketers may still be willing to ask for consent from the consumer, but not with that wording. And before you think this is a small matter, just consider that the change in wording can be the difference between 50 000 consumers agreeing to receive direct marketing messages and 100 000 consumers agreeing to direct marketing (i.e. this is a BIG DEAL).
But all is not lost as Regulation 6 as read with the definition of ‘form’ allows a direct marketer to request for direct marketing consent in ‘any form which is substantially similar’ to that form. (Our emphasis)
And herein lies the rub: No-one knows what is ‘substantially similar’ to form 4 and – inevitably – everyone is going to have a different interpretation of what is ‘substantially similar’. This will lead to – equally inevitably – the Information Regulator disagreeing with a direct marketing company as to what is ‘substantially similar’ as the IR will be inclined to require the direct marketing consent to be almost identical to Form 4, while direct marketers motivated to adapt the direct marketing consent as much as possible to be as attractive as possible to consumers.
Ironically this issue is even bigger than it at first appears and that is due to the problem of legacy direct marketing consents. Let me explain.
If you as a direct marketer go ahead and develop your direct marketing consent in a way that you consider to be ‘substantially similar’ you run the very large financial risk that your direct marketing ‘consents’ will be declared invalid at some point in the future. Declaring a couple of direct marketing consents to be invalid is obviously no problem, but if you have been using that same template for the last 6 months then you are suddenly in a situation where your ‘asset’ (500 000 direct marketing consents) is now worthless. That is an even BIGGER DEAL.
What to do?
In my view the most practical way for companies to deal with this conundrum is for them to develop some direct marketing consents and send them to the Information Regulator for approval. Provided the IR responds and is reasonable in its response this is probably the easiest way for all the parties to avoid litigation and arrive at a general understanding of what ‘substantially similar’ is. The alternatives are complying with the exact wording of Form 4 or playing a game of direct marketing Russian Roulette…