The Use of Chatbots as a Form of Direct Marketing: Is It Direct?

Abstract

The use of Artificial Intelligence (AI) powered chatbots as a form of marketing is increasing rapidly, is the Protection of Personal Information Act 4 of 2013 (POPIA) fit for purpose? The evolving nature of new technologies in the period of Artificial Intelligence (AI) poses a conundrum for the privacy of individuals, to the extent that the use of personal information may be used for illicit/questionable purposes. This paper argues that despite the enforcement of the POPIA provisions in respect of protecting personal information from direct-marketing, the use of modes of AI such as chatbots by organisations does not fall within the ambit of the POPIA direct marketing protections. Section 69 of the POPIA and the definitions of direct- marketing therefore require legislative alignment to cater for the fast-evolving nature of technology. Literature demonstrates that the Consumer Protection Act 68 of 2008 (CPA) provisions in respect of direct marketing and the Electronic Communications Act 25 of 2002 (ECTA) have not been very effective in curtailing direct-marketing tactics from organisations, this has been shown by authors such as Papadopoulos and Tladi. Notwithstanding the fact that section 69 of the POPIA revised the opt-in method for direct-marketing, this paper illustrates that operational loopholes that exist in the practical sense and how these render the adherence to processing personal information in accordance with the POPIA ineffective. This paper shows that legislative reform such as simple and clear language within the existing provisions may be used to curtail the conundrum, international legislation such as the DPA 2018 and the GDPR are useful reference points in this regard. Effective privacy by design principles such as consent management processes also provide a way forward. Ultimately, the legislature is in need of adopting language and practical implementation and monitoring that will be applicable and relevant to the ever-changing fast pace of new technologie