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Guidance Note on Direct Marketing

On the 3rd of December 2024 the Information Regulator published a Guidance Note on Direct Marketing (“the note”). The note essentially 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.

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 for the purposes of assessing 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.

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.

Whilst this is a welcome clarification of what the Information Regulator’s views are about unsolicited direct marketing by means of 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 in relation 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 practice.

About the author

Sián Fields (Copyright IP & Technology, Data Privacy and Commercial Law Specialist)

Sián Fields is a Reynolds Attorneys consultant specialising in copyright IP and technology law, data privacy law and commercial Law. She has an LLM in Commercial Law with a specialisation in Electronic Law, and has extensive experience in information technology and telecoms, and offshore and local data privacy laws.
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Nicole Copley

NGO law

Nicole Copley is an NGO lawyer who works for NGO clients all over South Africa and internationally. She qualified with a BA LLB LLM (Tax) from the University of KwaZulu-Natal, Durban (with a Masters in tax exemption), and is a Master Tax Practitioner SATM.

Nicole advises on, drafts and amends founding documents for and sets up every sort of organisation required by South African NGOs. She makes tax exemption and 18A (deduction of donations) applications, and applications to be registered with the Nonprofit Organisations Board. She (and her team) keep registrations up to date and assist with compliance and reporting. She also NPO reporting and other services. She advises on re-structuring and assists not-for-profits in understanding and applying the useful provisions of B-BBEE.

She also does commercial drafting work for her NGO clients, vetting and drafting agreements for them. She works for a wide range of types and sizes of organisations and aims to provide a pragmatic and efficient service. Her decades of experience in consulting to NGOs means she takes the long view, is focused on governance, ethics, credibility and sustainability and steers clients away from quick fixes, helping them build/renovate so that the organisation outlasts current office bearers.

Nicole works with other consultants to the not-for-profit sector, collaborating on training, newsletters, advising government on legislation for the sector and, most recently, a series of practical guides for the sector, called “NGO Matters”, originally published by Juta but now published by Nicole as NGO Matters Publications.

She has been a consultant since 2019.

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