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South African marketers are coming under increasing pressure from existing and new legislation that determines how they market to potential customers via mobile and email messaging. These measures actually place us on a more equal footing with developed markets, but overly stringent laws may have unintended consequences.
In an environment that is evolving as rapidly as the digital marketing space, it’s always good practice to have rules or guidelines that determine what is allowed and what is not. This is especially relevant in an era where around 80% of all email is classified as spam and in which the inbox has become a popular destination for these and more malicious messages.
As an active participant in the global economy,South Africa is therefore bound to ensure that it creates an environment that discourages unscrupulous marketing or malware that could as easily land in an inbox in London or New York as one in Johannesburg or Khayelitsha.
We have therefore seen several new pieces of legislation over the past few years that try to establish a level playing field for consumers and marketers, while aligning the country’s laws with international practices.
This last point is particularly important given that South Africa’s growth prospects are heavily dependent on strong trade relations, which often demand strict regulatory and governance frameworks.
And this is the position we find ourselves in with the highly anticipated Protection of Personal Information (PoPI) Act. Aside from the positive implications for South African consumers, this piece of legislation is also a key step toward the country demonstrating its willingness to enforce global standards, and thereby improve its chances of participating as an equal partner in the global economy.
Internationally accepted limits
It stands to reason that few international organisations would consider investing here or outsourcing services to South Africa if the local regulatory framework did not provide internationally accepted limits or protection.
And this is a position that regulators and policy-makers should pursue with vigour. My question, however, is whether we should be applying blanket laws that don’t fully take local conditions and demographics into consideration.
One of the bugbears in the digital marketing space, for example, is the persistent question of when and how marketers can send commercial messages to consumers.
This has been effectively handled in legislation such as the Electronic Communications and Transactions (ECT) Act and, strangely, by the Consumer Protection Act (CPA). I say ‘strangely’ because the Act was intended principally to protect consumers’ rights when purchasing a product or service, but was then extended to include the marketing of these goods or services.
Weeding out unscrupulous operators
Demographica fully supports the intentions and effects of both these laws as they lend credibility to providers such as us by weeding out unscrupulous operators. As a member of the Direct Marketing Association (DMA), we are also bound by codes of conduct that further strengthen the industry, but we also benefit from the Association’s participation in the regulatory process.
The DMA, for example, consulted extensively with policymakers in the drafting of the CPA to finally allow the practice of digital marketing opt-out rather than opt-in. Under the latter scenario, marketers may only send commercial messages to consumers who have given express permission to be contacted, while the latter requires consumers to opt out from receiving such messages.
There are a raft of other limitations and requirements in the Acts that prevent the wholesale spamming of the entire population, so it’s not as if the opt-out mechanism is a signal for unethical marketers to have a field day.
Who will suffer
Had opt-in been laid down in the Act as the only acceptable means of building subscriber databases, I believe consumers would suffer as much as brands themselves.
The reason I say this is that large portions of the South African population don’t have easy access to materials or media through which they can be educated about a product or service. Whether it’s specials on food or home appliances, or more critical offerings such as financial services, they would be blind to opportunities from which they could benefit.
How can you opt in to something if you don’t even know it exists?
The ECT Act and CPA are both very clear on the measures that need to be taken to protect consumers’ rights with regard to the security of their information and when and whether they can be sent commercial messages. In both cases, the opt-out mechanism is accepted as a sufficient means to allow recipients to inform marketers that they no longer wish to be contacted.
The success of these laws in bringing a greater measure of credibility to digital database marketing should therefore be strongly considered in the drafting of the PoPI Act. We should also not lose sight of the unique marketing environment we operate in and that reaching consumers is somewhat different here than in other markets.
We welcome the prospect of the certainty that the PoPI Act will bring, especially as it will enable the entire industry to implement necessary measures and controls and move forward with certainty.
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