MAIN IMAGE: Pansy Tlakula – Information Regulator chair, and John Giles – MD of Michelsons
Senior writer
Although considered a hit-and-miss effort, telemarketing by estate agents has long been used as an effective method to find properties for sale. It’s rewarding when you find that one person who may take you up on an offer to value their property, but conversely demoralising when, after 50 calls, you can’t get a bite, let alone the aggravation from customers demanding, as per their rights under the Protection of Personal Information Act (POPIA), to be removed from your contact lists.
POPIA indicates that cold calling/telemarketing is a form of direct marketing, and as such, a recipient may ask an agent to stop all forms of contact, be that SMS, WhatsApp, direct calls, emails, etc.
Gap in the Act
What isn’t clear, and this is where things become a bit vague, and something that the Information Regulator chair, Pansy Tlakula, raised as a concern on 11 September, is that there is no regulation that specifies a time limit to the number of times that a telemarketer can call to request consent. The direct translation is that nothing prevents telemarketers “from calling you until they find you,” said Tlakula.
“What is important is that that first call should be for obtaining your consent. Members of the public have to be educated on that,” she said. She pointed out that the recipient is responsible for confronting telemarketers about their consent or non-consent. And this also applies to all forms of communication.
Tlakula related her own experience relative to unsubscribe or opt-out buttons that are on links via SMSes or emails, indicating that they are ineffective. “Try to click on unsubscribe. I will tell you the following day you will receive the same message. It means the system is not working,” she said. “I have personal experience of clicking unsubscribe, but all the time, I keep on receiving messages from companies I have unsubscribed from.”
Global concern
It turns out it’s a global problem. The Federal Communications Commission (FCC) in the US has issued several new rules and updated guidance about businesses’ use of telemarketing calls. The FCC’s re-enforcement of the Telephone Consumer Protection Act and its National Do Not Call Registry follows a number of real estate agents being accused of unlawfully using telemarketing and text communication for promotional purposes. Agents who are accused may find themselves in a class-action lawsuit.
Waiting for guidance
Similarly, in February, SA’s Information Regulator issued a direct marketing guidance note for public consultation, which designates telemarketing as a form of electronic communication that must be deeply regulated under POPIA. It aims to clarify the processing of personal information in direct, unsolicited electronic communications to protect the public and stop, at least, spam telephone calls. The regulator has yet to publish this guidance note, which is now past its anticipated release of 25 September.
A synopsis of the Information Regulator’s public brief on 11 September comes from John Giles, MD of Michelsons. “The central theme was that the regulator has taken various enforcement actions but hasn’t succeeded in holding anyone accountable through fines or imprisonment. The regulator is working hard and is having a significant impact, but many organisations are still not complying and are not being punished for their failures.
“Until there are consequences, non-compliance will continue, said the regulator, which aims to increase its enforcement power by asking Parliament to increase its powers.”
When a direct marketing complaint is received, the Information Regulator undertakes an investigation, which may lead to an enforcement notice. On its own initiative, the regulator may also do an assessment, with the resulting Assessment Report considered equivalent to an enforcement notice.
This notice instructs the responsible party to adjust and amend their practices lest they be exposed to a potential hefty fine of up to R10 million or jail time. The timeframe in which to comply with the Information Regulator’s instruction and provide evidence of doing so is 90 days.
Take action
Until the guidelines are published, the usual actions remain applicable if agencies and agents are to remain compliant, including but not limited to:
- Always ask for consent from the public prior to making any request.
- Notify data subjects that their personal details will be used for marketing purposes.
- Take security measures to secure the integrity and confidentiality of personal information.
- Never transfer personal information outside of SA, unless there is adequate protection in place.
- Ensure that if you have acquired a contacts list from a marketing company, that that company has complied with POPIA and that those contacts have given their permission to be contacted about real estate.
- If a recipient indicates they wish to be removed from all correspondence, comply immediately and ensure they are removed from ALL lists, be that email, SMSes, and other social media platforms used, so they cannot be contacted again … by any agent.
- If opt-out or unsubscribe boxes are ticked, again remove the recipient from all databases.
