The Consumer Protection Act (CPA) – which came into effect in South Africa on 1 April 2011 – adds to the existing Electronic Communications and Transactions Act (ECT Act) to clarify the law’s position on email and SMS marketing. If your business markets any products or services through these two channels, it’s not time to panic, run for the hills and become a sheep farmer. There are just some important dos and don’ts you should know about.

In a nutshell: email and SMS marketing is not illegal, nor is it illegal to send out messages to a database you yourself did not amass (i.e. it’s still okay to rent or buy databases – even though doing so might not be the most effective means of marketing). However, there are some legal requirements around providing and respecting opt-outs and making sure that the consumer has been given all the key information she needs to make an informed decision about what you’re offering.

Note – this list refers to a National Opt-Out Registry. This will be established by the Department of Trade and Industry and will be a directory that anyone can list themselves on at any time to permanently opt-out of any direct marketing (this includes email and SMS). Sending unsolicited marketing messages to anyone on this list will be illegal. This Registry has not yet been established, so we’re not totally clear on how it’s going to work in practice yet (although it seems likely that it will be based on the existing Direct Marketers’ Association’s registry. We’ll let you know when we know more.

1. Do cross-check any email or SMS database against the National Opt-Out Registry before sending any communications out to that database. 
2. Don’t buy or rent a database without first checking that it has been cross-checked against the National Opt-Out Registry. 
3. Do make sure that every email and SMS you send out contains an option for that consumer to opt-out of future communications – make sure this is clearly worded and it doesn’t cost the consumer anything to opt-out.
4. Don’t ever send a consumer a marketing email or SMS after they have unsubscribed from a database.
5. Don’t, in a promotional competition entered via SMS, make the cost of the SMS any higher than the cost of a normal SMS (R1,50 max at the time of writing).
6. Do be aware that any consumer who buys something based on an email or SMS communication, is allowed 7 days after receiving the goods or concluding the agreement in which to change their mind about the transaction without having to give a reason – they must be given a full refund and must return the goods – this is called a cooling-off period.
7. Do make sure that anytime a consumer completes a transaction after an email or SMS promotion they are informed that they have the right to a cooling-off period – this is required by law.
8. Do make sure that any email campaign you send out links back to a website where the following information is listed:
   •  The company’s full name and legal status (e.g. CC, sole proprietorship…).
   • Its physical address and telephone number.
   • Its website address and email address.
   • Any codes of conduct to which that company subscribes.
   • Its registration number, the names of its office bearers and its country of registration (if applicable).
   • The privacy policy of that company in respect to personal and payment information.
   • A full description of the goods or services on offer, including their full prices (including transport costs, taxes and any other fees), the manner of payment that will be accepted, when the goods will be delivered, and any terms or guarantees the consumer will be subject to.
   • Consumers must be told how they can access a record of the transaction at any time.

The CPA and ECT Act are extensive documents (predictably; they were drawn up by lawyers, after all) and please note that this list is by no means exhaustive. If email and SMS marketing are a large part of what your business does, you may still wish to consult with your attorney, just to be extra sure.

Also check out:

• Email is Broken
• Search Marketing extends to Mobile