Understanding consumer rights and unwanted direct marketing

The IAB SA and Endcode have responded to an IAB SA member query with regard to cold calling by an investment company.

THE QUERY

“Every week without fail I get one English and one Afrikaans phone call from an investment company*. Literally EVERY week, usually on a Friday. I keep asking for my name to be removed and they always hang up on me before I can finish the sentence. Today I received a very upbeat “Hi Warren**!” from a young lady. As she used my first name, I thought she must know me. So I said hello back and asked who was calling. She then asked me how I was doing and so I was obviously suspicious. I asked if this was XXX Investments and she said: “Oh, you know us then? So when can I send someone to see you? Tomorrow morning or tomorrow afternoon?” I told her she was rude and that I wanted my details removed … but by then she had hung up.”
* Name withheld
** Not the member’s real name

THE RESPONSE

The Consumer Protection Act (CPA) applies in this regard. The Protection of Personal Information Act (POPI) would apply to such processing of personal information but is not yet fully in force. The CPA provides for various consumer rights. In this instance, the consumer’s right to privacy and the right to fair and honest dealing are pertinent. For unsolicited electronic communications (spam), section 45 of the Electronic Communications and Transactions Act applies.

The CPA entitles consumers to demand that any company that has contacted them via email, SMS or a phone call immediately desist and not contact them again.

How do I remove my name and contact details from cold call centres?

First, ask the centre to remove you from their contact list immediately. Inform the organisation that consumers have the right to tell marketers to refrain from direct marketing.

If this is of no avail, lodge a complaint with the National Consumer Commission (NCC). Since the NCC is unable to deal with every complaint, it suggests dispute resolution as a first resort. If this is unsuccessful, the NCC advises consumers to approach their Provincial Consumer Affairs Office (Gauteng: +27 11 355 8006/0860 4288634 or consumer@gauteng.co.za). The provincial office will escalate the matter to the National Consumer Tribunal if it deems fit.

Consumers can have their names listed on a “Do Not Contact” list. The NCC has yet to establish a national “Do Not Contact” registry.

The Direct Marketing Association runs its own opt-out register (the National Opt Out Database) but this applies only to members of the association. You can check the list of members on its website. The investment company in the example is not a member.

To track problematic actions taken by a call centre, take heed of the following information related to the call/s:

  1. Date and time of the call/s. (Prohibited times for contacting consumers are: Sundays and public holidays; Saturdays before 9am and after 1pm; all other days between 8pm and 8am the following day.)
  2. Contact details of the call centre, its website and physical address.
  3. The name of the agent who contacted you.
  4. The name of the client on whose behalf the agent contacted you.
  5. Record your request to be removed from the call centre’s contact list and the client’s contact list.
  6. Try to recall your conversations during which you have requested the company not contact you (this would provide evidence of your request).

Recall under what circumstances the company obtained your information:

  • Was there consent?
  • What kind of information was provided, if any?
  • Did the consumer agree to any type of agreement?
  • Was the information provided under a credit agreement?

Some consumers have, in frustration, resorted to naming-and-shaming tactics on social media.

Where do I stand with the POPI Act?

Although only certain sections of the act are in effect (the definition of personal information and the sections that provide for the setting up of the Information Regulator), it is beneficial to understand one’s rights under this act. Chapter 8 of the act provides for the rights of data subjects with regard to direct marketing by means of unsolicited electronic communications, directories and automated decision making.

Section 69 limits the processing of personal information for the purpose of direct marketing to those consumers who have either provided consent for such processing or have a previous relationship with the company involved. Companies that approach a customer by virtue of such a previous relationship are only allowed to do so within certain limitations. These limitations are set out under section 69(3): the customer can only be approached if his/her details were obtained in the context of a sale of a product or service; only for the direct marketing of similar products and services offered by the company; and if the customer has been given an opportunity to object to such use at the time when the information was collected.

The existence of a previous relationship does thus NOT provide free reign for repeated advances to existing customers.

In the example provided above, the investment company’s actions amount to a violation of the CPA: violation of the right to privacy and of the right to fair and honest dealing.

1. Consumer right 2: right to privacy

A consumer’s right to privacy under the CPA provides in section 11 for the right to restrict unwanted direct marketing. Section 12 provides for times for contacting customers.

  • Consumers have the right to protect their privacy and confidentiality in respect of unwanted or unsolicited correspondence.
  • Consumers have the right to refuse unwanted SMSs, telephone calls, letters or spam e-mail.

Furthermore, a consumer’s right to privacy under the CPA provides for the right to discontinue receipt of direct marketing at any time.

  • Consumers have the right to opt out of receiving unsolicited direct marketing services by blocking the relevant supplier/marketer.
  • Consumers have the right to accept, restrict or refuse unwanted direct marketing.
  • Companies and suppliers are not permitted to continue any unsolicited direct marketing of goods and services, once consumers have opted out.

The investment company’s conduct amounts to an attempt to block the customer’s efforts at opting out of the direct marketing communication.

2. Consumer right 6: right to fair and honest dealing

Section 40: Right to protection against unconscionable conduct

Suppliers are not permitted to use coercion, undue influence, pressure, duress, harassment, unfair tactics or any other similar conduct when marketing goods or services.

Suppliers are not permitted to take advantage of consumers who are unable to protect their interests due to mental or physical disability, poor literacy, ignorance or inability to understand the language of an agreement or any similar factors.

Unconscionable conduct refers to unethical or improper behaviour. The investment company is pushing the limits of improper behaviour by: repeated calling despite resistance from the subject; assuming a personal relationship by referring to the subject by name; insisting on setting up an immediate meeting; and ending the call when challenged by the subject.

Remedies:

  1. The investment company’s actions should be taken up with the NCC (or initially the Provincial Consumer Protection Authority).
  2. The Department of Trade and Industry also runs a consumer contact centre: 0861 843 384.
  3. If this is fruitless and the complainant wants to take the matter further, legal advice should be sought.

Note that the company in question has had complaints posted against it on HelloPeter.