On the 3rd of December 2024, the Information Regulator published a Guidance Note on Direct Marketing (“the note”). The note expanded the definition of electronic communications to include voice and sound messages including automated voice messages. This in turn expanded the ambit of what the rules on direct marketing applied to in the context of POPIA.
Inclusion of Telephonic and Automated Voice Calls in Direct Marketing Rules
The result is that the note recommends that when applying the rules relating to unsolicited marketing, telephone calls (including automated calling machines) now be included in the definition of electronic communications to assess the lawfulness of unsolicited direct marketing. This is a departure from POPIA in that telephonic and automated voice calling were not previously included in the definition of electronic communications and thus not governed by s69 of POPIA.
Implications and Future Compliance Considerations
In addition, the note sets out clear tests to determine whether a responsible party can rely on the legitimate interest provision to market without consent.
POPIA impact assessments – an ongoing requirement
Whilst this is a welcome clarification of what the Information Regulator’s views are about unsolicited direct marketing using telephone or automated voice calling machines, it is merely a guidance note and as such does not alter the legal status quo. However, businesses would be prudent to consider this a fair warning as to amendments which may be legislated to POPIA in the coming months and take the time to begin to implement new business processes to get ahead of the compliance curve and align with international regulation and best practices.
How do you think this expanded definition of electronic communications will impact businesses and consumers? Do you believe stricter regulations on telemarketing are necessary, or should businesses have more flexibility? Share your thoughts below!
Written by Sián Fields (Copyright IP & Technology, Data Privacy and Commercial Law Specialist)
This article was originally published by Reynolds Attorneys
