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Five Tips for Effective Marketing that Complies with the POPI Act

With the immanent implementation of the Protection of Personal Information Act, marketing companies have the opportunity to affirm their customers that the systems they use are integrous and follow the new legal requirements.

Grant Shippey

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Marketing in the digital age has opened an array of new opportunities for businesses to reach their target audiences. But the exchange of personal information between an individual and a company can expose consumers to a degree of risk.

This is why the South African government has introduced the Protection of Personal Information Act (POPI).

In future, companies will be required to protect the personal information that they process and to processes that information according to the conditions set out by POPI. However, POPI does not aim to stop the free flow of information, it recognises that there is a need for balance.

We-recommend-tickWe recommend: All You Need to Know About POPI with Nashua Limited

Guidelines for collected information

POPI doesn’t restrict the collection of people’s personal information but it does stipulate strong guidelines for how that information can be used. If reasonably practicable, companies should make a person aware that their personal information is being collected and why.

Companies collecting information should have a privacy statement, notice or policy that is easy to read and accessible. It should be in clear language and should state whether the information will be passed on to third parties.

Direct marketing by companies that use segmentation tools will be impacted by POPI requirements, but POPI will not put an end to direct marketing.

Direct marketing has functioned effectively in many countries that have had data protection laws for decades and is a legitimate interest that organisations can pursue to find new customers.

The big change or implication of POPI is that in future, any direct electronic marketing to prospects will need to be opted into. Opting in means that people will have to choose to allow a company to contact them and a company cannot market to people on unauthorised personal communication channels.

POPI will have a significant impact on email and SMS marketing, but it hasn’t rendered them illegal. Marketers can currently email and SMS prospective customers on an opt-out basis.

This means they can send anyone emails or SMSs until the person says to stop. Once POPI is implemented, marketers will only be able to email or SMS on an opt-in basis – contacting people only once to get their consent to send future communications.

However, consent isn’t required from existing customers, only from prospective customers. An existing customer is considered to be someone whose contact details have been obtained in the context of the sale of a product or a service.

POPI also requires marketers to offer people a way to opt out of their communications, and up to date subscription lists and bulk communication tools can assist with this.

The enforcer

POPI also gives significant authority to an Information Regulator, who can require companies to provide evidence of their adherence to POPI, failing which they can face either fines or jail terms.

We-recommend-tickWe recommend: Why You shouldn’t Ignore POPI (Even When it Doesn’t Prohibit Much)

Marketers must take any enforcement notice from the Information Regulator seriously.

POPI aims to put an end to mindless spamming where bulk communications are sent out in the hope that someone might be interested.

Finding quality leads and then targeting just those who are interested in particular goods or services is inline with what POPI wants to achieve. It may even increased lead conversion in the long run.

Grant Shippey CEO & Founder Amorphous New Media and Hudlr. Grant is a self confessed serial entrepreneur and the CEO & Founder of Amorphous New Media in Johannesburg. With almost 20 years in the industry Grant has worked extensively in the digital industry where he has incubated and launched a number of initiatives. Some of these projects include We Sell Web Ads, a digital media sales house, Times Media Apps, an application development and distribution unit and now Hudlr, an audience profiling application for the South African Market.

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Compliance

Can Your Words Be Used Against You?

Yes, they most certainly can. Here’s what the RICA Act has to say about recordings.

Andrew Taylor

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“This call may be recorded for quality control and records purposes…” Anyone who has been on hold with insurance companies would be familiar with these words — but what are the implications of a recorded conversation and when is it legal?

In essence, the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (mercifully shortened to ‘RICA’) permits any person, who is a party to a conversation to record that conversation, provided that it is direct communication — which is defined as oral communication between two or more persons that occurs in the immediate presence of those persons.

Section 4 of the RICA Act governs this aspect of our monitoring law. What is unclear, however, is the degree to which this extends to legal persons, such as a company that monitors a call centre agent’s performance, for example.

Related: Understanding Shareholder Agreements

Evidence in legal cases

While limited to direct communications and not covered by third party interception, such as an eavesdropper, the lesson here remains pretty stark — you could legally be recorded during any conversation you have.

The implications of this are significant — just ask former Springbok player Luke Watson, who had a conversation recorded during a function in 2008 that was subsequently leaked to the media.

Furthermore, with the widespread use of smartphones, together with applications freely available on the relevant app stores, designed to record cellphone calls, the likelihood of you being recorded — whether you know it or not, is ever increasing.

Beyond the moral or ethical ambiguity of this, the legal ramifications of what is recorded are more certain — the recording may be used against you as evidence in any criminal proceedings, or equally as possible, in civil proceedings where, for example, agreement to a contract or term thereof is in question, or in the insurance company’s case, whether or not to repudiate a claim based on the information you provide to them.

Related: Protect Your SME From PoPI

Know the business exception

Section 6 of the RICA Act contains a course of business exception that allows the interception of indirect communication:

  1. a) By means of which a transaction is entered into in the ordinary course of business
  2. b) Which relates to that business
  3. c) Which otherwise takes place in the course of that business.

While there has not, to my knowledge, been a reported case that deals with this aspect of the RICA Act, the implications regarding the use of this information to evidence the valid conclusion of a contract or as to the intentions of the parties to a contract are significant, particularly given that the scope is relatively broad, although limited.

The matter has, however, come before the Constitutional Court in the 1999 criminal case of S v Kidson, where the court held, per Justice Cameron, that unless a “reasonable expectation of privacy exists” it would be difficult to prevent the recording or interception falling within the ambit of the RICA Act.

Where to from here?

From both a commercial and criminal perspective, this should serve to remind us all of our wise grandmother’s words — if you have nothing nice to say, rather say nothing at all (especially because you never know whether you are being recorded).

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Compliance

Why You Shouldn’t Be Sweating The Fine Print

Signing a contract is a big deal, and you never want to sign anything you don’t fully understand.

Andrew Taylor

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While it is almost always a grudge purchase, ensuring that you have had a legal eye cast over a contract you intend to conclude means that you are protected, that you understand the nature of the obligations you are taking on and perhaps, an even better deal for you.

Given that legal agreements are an important aspect of commerce, we have distilled key points for you to consider, before engaging with external counsel. This will make the process more efficient and, hopefully, less expensive.

Reviewing a contract is a tricky business, not entirely different from asking a builder to finish building a half built house. However, there are some useful techniques to ensure you get the most out of the exchange with your lawyer.

Related: Why Your Business Needs Employment Contracts

Always create a timeline

You have lived and breathed your business and this transaction, while your attorney is possibly hearing about the matter for the first time.

Setting the scene correctly puts your attorney in the picture and explains what you want out of the exchange. Print this out for your attorney.

It will help an attorney identify key areas of risk which you might not have anticipated. Be sure to also tell your external counsel how quickly you need the review to be done. Setting expectations means there is less chance of disappointment later.

Provide supporting documents

It wastes your time and money when your attorney has to come back to ask you for supporting documentation.

Try to anticipate which documents will be relevant to your transaction and bring copies of them to the meeting for your attorney to consider. If you have previous versions of the agreement, for example, bring those too.

Remember, the more background work you do, the simpler and more efficient the process will be.

Understand your needs

Are you looking for a high level overview of your document to highlight some key contractual risks or are you looking for a thoroughly sanitised document reviewed from every possible angle?

I recently had to look over Jim’s Sale of Business Agreement for the potential acquisition of his Technology Company. He came to me with limited areas of risk which he had identified and wanted me to look at these clauses.

I was able to advise him to push back on certain clauses he had already negotiated and the resulting document placed him in a stronger legal and financial position. It was easy to justify the costs associated with the review.

This is not always necessary though — where there is limited legal exposure, or you have no bargaining power, the role of the attorney can be restricted, but still worth the investment since you have assurance that your legal exposure is as restricted as possible.

Be guided by the relative value of the document and the ensuing legal responsibilities — is this a standard supply agreement with a strange payment clause or a multi-national acquisition of intellectual property? The type of expert you engage with will vary, as will the cost of the review.

Related: Protect Yourself: How to Structure Your Consulting Contracts

Areas of concern

Directly related to knowing your business and understanding your needs, is your responsibility to communicate specific areas of concern to your attorney.

A recent client’s business processed a lot of personal information, in accordance with the Protection of Personal Information Act, but, the contractor they were about to sign a service supply agreement sought to have access to some of this personal information.

Had the client signed this agreement without a review of the potential legal consequences, it would have resulted in a clear breach of an essential provision of his own terms of use.

Seen alone, there was little risk, but within the context of this business, we were able to avoid this. A trusted and qualified expert will help you navigate the complex commercial world.

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Compliance

Are You Protecting Your Customer’s Data?

A company’s privacy policy dictates what personal information is processed, and the manner in which such information is collected, stored, and shared.

Kyle Torrington

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The collection, usage and sharing of personal information is regulated primarily by the Protection of Personal Information Act 4 of 2013. The Act was recently promulgated and is yet to be implemented. The Act seeks to give expression to the right to privacy provided for in the Constitution.

At the time of writing, the primary enforcement arm contemplated by the Act, the Information Regulator, has yet to be appointed. Once appointed, all businesses will be required to register with the Information Regulator to make public what personal information is being collected, and what it is being used for.

The Information Regulator will be empowered to enforce compliance with the Act, and able to investigate whether an entity is lawfully processing the public’s personal information. 

Related: Protect Your SME From PoPI

How are privacy policies affected?

The Act defines the term ‘processing’ broadly, and includes “the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use of a person’s personal information”. To process a person’s personal information, the prior consent of the person (data subject) is needed.

Personal information includes email addresses, names, identity numbers, phone numbers, the race, gender, religion, marital status of a person, and if applicable, an entity such as a company, to name but a few. One of the purposes of a business’ privacy policy is to obtain such consent, by an indication that the privacy policy has been read and agreed to.

The primary purpose of a privacy policy is to set out in clear and concise terms what personal information is collected by the company, and exactly what the company will and will not do with that information. It should also set out whether personal information will be shared, and with whom.

The Act restricts a company’s ability to store personal information outside of the country by requiring that it be transferred only to countries in which comparable security laws and data protection measures exist.

A situation such as this arises more easily than expected. Consider the example of the humble contact form: Your website, with its local server situated in Midrand, utilises a plugin to create custom contact forms.

Although your server may be in Midrand, every person who completes the contact form on your website has their personal information transferred and stored on servers in the home jurisdiction of your plugin creator, which may be in the US. But the plugin creator may also make use of third-party service providers based in Vietnam. An in-depth investigation of all third-party plugins and processes of a website is therefore required to ensure that you comply with the Act.

Access by a data subject to personal information

A data subject is entitled to request a full disclosure of any personal information held by the company.

As the procedures governing access to personal information overlap, companies should also ensure compliance with the processes outlined by the Promotion of Access to Information Act 2 of 2000 (‘PAIA’).

Related: Five Tips for Effective Marketing that Complies with the POPI Act

In terms of PAIA, all companies are required to compile a manual that needs to be registered with the South African Human Rights Commission. This manual sets out the company’s contact information, what records are available for inspection, the identity of the leadership of the company, as well as the manner in which a person may request access to information held by the company.

However, the Minister of Justice and Correctional Services has exempted private bodies from complying with this requirement for a period of five years, starting from
1 January 2016.

To ensure compliance with all data protection, privacy, and access to information laws, a privacy policy and a PAIA manual will be required by every business.

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