| Summary: | Submitted in partial fulfilment of the requirements for the degree of Master of Laws (by coursework and research report) in Commercial and Business Law at the University of the Witwatersrand, Johannesburg 2018 === As at 20 September 2017, barely a year since its establishment in terms of the Protection of
Personal Information Act 4 of 2013 (POPI), the Information Regulator had received a number
of complaints relating to the processing of personal information without consent for direct
marketing purposes by the banking, insurance and telecommunications industries. It is
generally accepted that the processing of personal information without the consent or
knowledge of the person to whom the information relates is a violation of their right to
privacy.
Direct marketing is currently regulated in South Africa by the Electronic Communications
and Transactions Act 25 of 2002 (ECTA) and the Consumer Protection Act 68 of 2008
(CPA). Both these pieces of legislation permit direct marketing communication until a
consumer opts out of it. These Acts do not address the processing of personal information for
purposes of direct marketing.
Until the enactment of POPI in 2013, South Africa did not have comprehensive data
protection legislation. Limited data protection provisions were contained in various statutes
such as ECTA and the Promotion of Access to Information Act 2 of 2000 (PAIA), however,
as neither legislation has data privacy as its objective, the data protection provisions
contained therein have not adequately protected personal information.
In the absence of dedicated data protection legislation, the consequences have been the
processing of personal information often without the consent of the individuals to whom the
personal information relates for a number of purposes including direct marketing and the
building of consumer profiles in order to serve targeted advertising. The direct marketing
industry which is dependent on consumer information (such as their names, contact details
and purchasing behaviour) collected from a number of sources, including public records,
social media, tracking technology such as cookies and sometimes directly from consumers,
has benefited from processing personal information without restrictions.
Not only will POPI alter the manner in which personal information is processed generally, it
will also restrict how direct marketing is carried out. === XL2019
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