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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2015-02-27
Receiving unsolicited junk emails or an SMS promoting some or other product or service can at best be regarded as mildly irritating to being offensive or in some cases even destructive.

These bulk emails, usually referred to as spam are messages in which the recipients have not given their consent to receive the message. It's often said that a person should not unsubscribe from junk mail. As these emails are often sent randomly without knowing if they reach a real mail account, by responding to unsubscribe lets the sender know that your account exists.

Spam can be also be seen as type of direct marketing, where more often than not we are tempted to part with our cash by purchasing some dodgy product, or offering to selling services which may be tainted with some or other fraud. Whilst spam may include hoaxes, virus warnings, urban legends, jokes, and so on, it can be used to distribute viruses.

In South Africa, there is legislation which protects us against spam and direct marketing. The Electronic Communications and Transactions Act, 2002, the Consumer Protection Act, 2008 as well as Protection of Personal Information Act, 2013 are those pieces of legislation which sets out clear boundaries to the supplier regarding when and how direct marketing can be used.

Direct marketing also includes all types of direct online marketing, whether it's an SMS or MMS, Apps, email marketing, social media marketing, banner advertising, voicemail marketing or couponing, (where manufacturers and retailers make provide discounts available for online electronic orders which offer online deals each day).

Direct marketing can sometimes also be seen as an aggressive way of bullying consumers into buying products they don't necessarily want. The Consumer Protection Act governs the manner in which direct marketing is to take place. Because in direct unsolicited marketing, the control is taken away from us and the marketer is in a powerful position to convince us into making a purchase we do not want or worse, cannot afford.

To see if the direct marketing is a form of bullying, we need to see whether that marketing stance would be considered as "unconscionable" in terms of the Consumer Protection Act. It would be unconscionable, if the product or service offered to the consumer is clearly an unfair or unreasonable one.

The consumer also can control whether or not they want to be approached by a marketer and if they want to receive marketing material. Section 45 of the Electronic

Communications and Transactions Act, 2002 says that recipients of unsolicited communications are able to opt-out of future communications and may request information on where their contact details were obtained.

Know your rights! The Law Desk of Fawzia Khan & Associates. Giving You the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.