[3 November 2024] The Minister of Trade, Industry and Competition has published draft amendments to regulations under the Consumer Protection Act 2008 intended to help implement an opt-out registry for direct marketing distributed by electronic communications.

Draft Amendments to Consumer Protection Act Regulations 2024 Opt-out registry

Public comment is due by 15 January 2025. Submissions can be sent to ssasayi@thedtic.gov.za for the attention of Mr Sibusiso Sasayi, Acting Director-General: Department of Trade, Industry and Competition.

Section 11 of the Consumer Protection Act governs the “right to restrict unwanted direct marketing” and confirms that the right to privacy includes the

  • Right to refuse to accept direct marketing
  • Right to require a person to discontinue sending direct marketing
  • Right to pre-emptively block direct marketing communications

In order to enforce these rights:

  • A consumer can demand during or within a reasonable time after receiving direct marketing that the person responsible for initiating the communication desist from initiating any further communication
  • The National Consumer Commission (NCC) may establish or recognise as authoritative, a registry in which any person may register a pre-emptive block, either generally or for specific purposes, against any communication that is primarily for the purpose of direct marketing.
  • Direct marketers must have appropriate procedures to facilitate the receipt of demands to desist and are prohibited from sending further direct marketing to a consumer who has made a demand to desist or who has registered a pre-emptive block

The Minister published regulations in 2011 which included a specific regulation relating to setting up the opt-out registry, but the registry has not to date been established. Neither has the NCC recognised any other opt-out registry established by bodies such as WASPA as being authoritative for the purposes of the Consumer Protection Act.

The draft regulations out for comment seek to improve on the regulatory framework and are a response to a surge in voice spam over the past few years.

The interaction between the draft regulations and POPIA is one of the items that will need to be unpacked. Broadly POPIA is opt-in while the CPA is opt-out….The Information Regulator has indicated it will soon release a guidance note on direct marketing through electronic communications but to date the Protection of Personal Information Act (POPIA) has not been effective in addressing spam.

The draft regulations propose the following:

  • Registering a pre-emptive block: a form is provided for consumers to use. No fee is payable.
  • Registration of direct marketers: any person who intends to engage in direct marketing must register with the NCC using the form provided and renew this registration annually. In the absence of a valid registration the direct marketer is prohibited from contacting consumers for this purpose.
  • Identification of direct marketers: recipients must be able to identify the name, electronic address, physical address and contact number of the direct marketer. Public platforms may not be used to send direct marketing communications where the sender cannot be identified.
  • Maintenance of registry information: direct marketers are responsible for keeping registry information up to date.
  • Respecting pre-emptive blocks: aside from not sending to consumers who have registered a pre-emptive block, direct marketers must remove from their databases all data of persons who have registered such a block “by cleansing such data monthly with the NCC”.
  • Proposed fees:
Fees 2024 (ZAR) 2025 (ZAR) 2026 (ZAR)
Registration 2452.00 2574.00 2702.70
Annual renewal 1930.50 2027.03
Cleansing registration fee (per request) 0.10 0.12 0.14

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[April 2011]

Consumer Protection Act Regulations (1 April 2011)

The Minister of Trade and Industry is required under section 6(1) of the CPA to make a determination as to the annual turnover or asset value threshold above which a juristic person will not be entitled to the protections offered by the Act.

The applicable threshold applicable to the size of a juristic person is R2 000 000 effective 1 April 2011 and the method to be used for calculating size is set out in a schedule to the Determination of Threshold in terms of the Consumer Protection Act 2008.