POPIA Q&A: Getting Consent for Direct Marketing

Do I have to display permissions predominatly?

You can do this, but the consent for direct marketing must still be explicit – many companies do this with the use of a checkbox on the form.

What Kind of Marketing do I need consent for?

Electronic direct marketing (automatic calling machines, facsimile machines, SMSs, emails, push notifications, or in-app direct messages – like a ‘DM’ on Instagram) requires consent before you send marketing.

Telemarketing, on the other hand, depends on the context. Sometimes, under POPIA, you can do direct marketing telephonically without consent. To not require consent, the data subject’s personal information must have been collected for the original purpose of telemarketing to that data subject. Here, the legal justification for processing the data subject’s personal information under POPIA can be the legitimate interest of the responsible party.

Alternatively, you will not need consent, if telemarketing to the data subject was not the original purpose of collecting the data subject’s personal information. In this case, as long as telemarketing to the data subject is compatible with the original purpose that the data subject’s personal information was collected, you do not need consent.

Can I Use Competitions to get People to Subscribe?

Yes, but you can’t hide the consent to direct marketing in the competition terms. You must be upfront about it, saying something like: “Subscribe to our newsletter and stand a chance to win an iPad.” Otherwise, ensure you have an opt-in checkbox in the competition form so your participants can choose to receive direct marketing if they want.

Just adding the direct marketing consent into the terms and conditions is not permitted.

What happens if there is a merger?

You’ll need to understand the nature of the new company. For instance:

  • Will they still be functioning as separate brands? If so, you don’t need to consolidate – both databases can keep functioning in their individual silos.
  • What communication are you sending your contacts about the merger? You can merge lists if you’re open and clear about the merger, that the branding will be changing (if relevant), and that they continue to have the chance to unsubscribe.
  • Think about what you’re going to do when one person is subscribed to both databases, but with different data – what will the rules be in terms of overriding data and data quality?

Do I need Consent Per Product?

It depends how similar these products are. If we’re talking a broad category like food where you want to market apples to your oranges database, then no, you won’t need separate consent. But, if you’re talking about apples and insurance, it’s best to get consent per product.

It’s best to build a preference centre, where people can customise the content they receive from you.

How can we prove that the person whose consent we receive is the actual person consenting?

There are many ways of proving who consented to what. In terms of the electronic communications and transactions act and court cases about this, you have a right to assume that the person whose signature is at the bottom of an email is the person who sent the email.

But, if you want to be certain, you can use two-factor authentication, sending them a link in an email that they must click to confirm that this person is who they say they are.

If your main brand sells other related products (e.g.: a property search website that also sells home-loan-related products), how do we know if the additional product / service falls into a similar enough category to be marketed to under the same consent?

The rule of thumb when trying to decide if you need additional consent for a different product under the same brand is: will this person be surprised to receive this messaging?

Novation Consulting suggests that you can probably argue that buying a property and financing that property could go under the same consent, as most people need home loans to finance properties that they purchase.

What about communicating via different channels (email / Telegram / WhatsApp / phone) – do I need an opt-in for each channel?

It’s unclear exactly how this must happen, but what we do know is that you must be clear on which channels you’ll be using. It’s a good idea to give people the option to select the channels they prefer, so they’re not stuck with an all-or-nothing subscription. You’re less likely to lose subscribers if they can tailor their subscription to their preferences.

Can I use gated content as a consent form?

You can do this, but the consent for direct marketing must still be explicit – many companies do this with the use of a checkbox on the form.

To find out more visit the Popi Act website: Click here.