Does Section 69 of the Protection of Personal Information Act 4 of 2013 (‘POPIA’) Extend to Telemarketing?: A Comparative Analysis

Abstract

The regulation of direct marketing in South African law is not a foreign concept. Direct marketing has been regulated in the Consumer Protection Act 68 of 2008 and its Regulations, the Electronic Communications and Transactions Act 25 of 2002 to now the Protection of Personal Information Act 4 of 2013 (POPIA). POPIA is South Africa’s first ever dedicated piece of legislation to the protection personal information of data subjects, unlike its predecessors which were consumer centric. POPIA was enacted with the main aim of protecting the processing of data subject's personal information. Since its inception, we have not seen much litigation on it, and there remains some uncertainty regarding the applicability and interpretation of certain of its provisions. This research paper focuses on section 69 of POPIA, which deals with direct marketing by means of unsolicited electronic communication. In terms of section 69(1), direct marketing by means of unsolicited electronic communication is prohibited unless certain requirements such as prior consent are met. Around February 2024, the Information Regulator made pronouncements that telemarketing falls within the ambit of section 69 and thus prohibited unless certain requirements such as prior consent are met. The remarks by the Information Regulator sparked a debate on whether telemarketing falls under section 69 of POPIA within the legal fraternity. This research will show that section 69 of POPIA does not extend to telemarketing, and that there is a need for an amendment of section 69 of POPIA to create legal certainty in the interpretation of section 69 and the Guidance Note issued.