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Episode 6

Back to POPIA for Estate Agents

Deep dive into Direct Marketing - Narrative

Hello all, and welcome back to Lightstone’s POPIA for Estate Agents podcast.

In the last episode we looked at - if and how the current two laws governing Direct Marketing, namely the ECTA and CPA, will still impact Direct Marketing once POPIA comes into effect on 1 July 2021.

In that episode we discovered that while the ECTA will effectively fall away in this regard, the CPA will continue to play a powerful role in how we conduct Direct Marketing. If you missed that episode, I suggest you listen to it in conjunction with this episode. That way you will have the full picture.

In this episode we will look specifically at how POPIA affects Direct Marketing. And don’t worry if you have any burning questions. We know how important this topic is! That’s why the next episode will be dedicated to addressing several common questions and examples aimed specifically at this topic of Direct Marketing and the law.

Once again, I welcome back my fellow explorer, Esteani Marx, Head of Real Estate at Lightstone.

Thank you Linda. Let’s start with that burning question: What does POPIA say about Direct Marketing?

Firstly we need to be clear on what is meant by Direct Marketing in POPIA as it’s a little different to the definition in the CPA. Remember, POPIA specifically deals with Direct Marketing by means of unsolicited electronic communication. POPIA defines "electronic communications" as "any text, voice, sound or image message sent over an electronic communications network which is stored in the network or in the recipient's terminal equipment until it is collected by the recipient." Direct Marketing is also defined in POPIA as approaching a data subject, either in person or by mail or electronic communication, for the direct or indirect purpose of a) promoting or offering to supply, in the ordinary course of business, any goods or services to the data subject or b) requesting the data subject to make a donation of any kind for any reason.

So I can still go to someone’s door, or chat to them in the shopping centre and market directly to them?

Yes – but only within the bounds of the CPA provisions, which we covered in the last episode, of course.

So what is ‘electronic communication’ then, as far as POPIA is concerned?

POPIA is a little vague about this, saying only ‘any form of electronic communication, including automatic calling machines, facsimile machines, SMSes or e-mail’.

So POPIA doesn’t mention things like sending messages on WhatsApp, Telegram or similar messaging Apps, or Direct Messages within social media?

It doesn’t explicitly mention these, but I think you’d be hard pressed to convince someone that a WhatsApp message is not a form of electronic communication. A conservative approach would be to include all contact by electronic means for purposes of Direct Marketing as "unsolicited electronic communications".

Fair enough. What if I make a phone call and get through to the person? In other words I haven’t left a voice message, which would clearly be a form of electronic communication, but I have actually reached them in person? Would that be considered a form of electronic communication?

The short answer is – we don’t know. It’s not explicitly clear in POPIA. This is quite controversial, because it is possible to argue that a phone call (if it is not a voice mail that is stored on a consumer's answering machine or answering service) would not fall within the ambit of POPIA. We are not sure whether this would be a defendable position, because that means that a person may then use a person's phone number (which is clearly personal information) to contact that person for Direct Marketing purposes, which seems as if it should fall under POPIA. This type of uncertainty often happens with new laws as there are inevitably always things that can’t be 100% clear up front. What happens then is that the topic is challenged and decided in a court of law, and that decision becomes what’s called ‘case law’ and should guide people on the interpretation of the Act thereafter.

Fair enough. But does that mean our Estate Agents can phone people after POPIA is in place, or not?

This is something that we recommend our clients get specific legal advice on. It comes down to an interpretation of the law, and that is definitely something that requires legal expertise in the context of each business and the specifics of their circumstances.

OK. But looking at the ‘intent’ of the law, it’s to enable consumers to protect themselves against unsolicited communications, right?

That’s right. All of these factors should be considered when making decisions on what to do.

What does POPIA say people must or must not do when engaging in Direct Marketing by means of unsolicited electronic communications?

Well, the Act says that engaging in this type of Direct Marketing is prohibited, unless the data subject has given their consent, or the data subject is an existing customer of yours.

Those seem like two separate things, so let’s deal with them separately. So if someone is an existing customer of an Estate Agent’s, then they can market directly to them (using unsolicited electronic communications')?

Yes – under certain conditions. Firstly, you must have gotten their details in the context of a previous sale. Secondly, the marketing must be related to your own (not another company’s) similar products or services to the one you got their details for originally. And thirdly, you must have given the data subject a reasonable opportunity to object to the use of their details for marketing, when you collected the details and every time you market to them thereafter. So that means if you have an existing client because you helped them buy or sell a house, you may contact them to see if they are interested in buying or selling a house through you again. And each time you contact them you must give them fair opportunity to tell you they don’t want to be contacted.

That sounds a lot like the ECTA requirement to give an ‘unsubscribe’ option when you Direct Market?

Yes, an ‘unsubscribe’ option on each communication would fulfil this requirement, similarly to the ECTA.

That seems pretty straight forward. You can market to your existing customers as long as they’ve bought something from you; that the marketing is related to the thing they’ve bought; and also you give them an option to not be marketed to. Does that sound right?

Yes it’s pretty straight forward, except that the definition of who is an existing customer is not very clear in POPIA. For example, in the Estate Agent’s world, if someone bought a house from you 8 years ago, are they really still a customer? If you had a contract with them to sell their house but in the end another agency ended up selling it, are they still a customer of yours? These are the types of questions you would need to seek legal guidance on.

I guess that’s the type of thing that might get clarified in case law eventually?

Probably, or perhaps some clarifications will be made in due course. In the meantime, companies need to make their own interpretations but we suggest legal guidance be sought to assist with this. What has become clear is that each company will have to evaluate all of its 'databases' that it has collected over the years and determine how that company will decide who falls within the category of ‘existing customers’. Those who don’t fall into that category, would then fall into the second category.

This second category – in other words, when someone has NOT been a customer of mine – what does POPIA require in those cases, for Direct Marketing to not be prohibited?

It’s quite simple – you need to get consent from that Data Subject. After POPIA comes into effect, you are allowed to approach each Data Subject once only, if they have not previously withheld their consent, to obtain their consent for Direct Marketing. It would be most wise to use that once-only approach to gain their consent in the right way, for Direct Marketing, because if you don’t get their consent during that one approach, you are not allowed to Direct Market to them again.

I guess that makes sense. You need consent to Direct Market to someone but how are you going to get consent if you’re not allowed to contact them? So, you get one chance to contact them.


But what do you mean by getting their consent ‘in the right way’?

POPIA outlines that consent must be obtained ‘in the prescribed manner and form’. There is an example of the type of form to be used, in the regulations to POPIA, called Form 4. It is not yet clear whether you have to use that form in its exact format, or whether you are allowed to design your own form, as long as the substantive requirements of Form 4 are present. It is important to make sure that the customer understands what they are consenting to, by using a clear and unambiguous form. The requirements are quite long so we will go through them step by step and important parts are the following:

  1. The consent obtained from the customer must be voluntary, specific and informed. This has led to a debate around whether POPIA requires 'opt in' or 'opt out' consent from the customer. 'Opt in' consent is usually where the customer has to take a positive step to indicate their consent (such as ticking a box or entering a website). 'Opt out' is generally where the customer will receive the marketing material, until they choose not to. The conservative approach from a POPIA perspective, is that the consent for Direct Marketing must be 'opt in' to make it clear that the customer has made the positive choice to receive the marketing material.
  2. The Direct Marketing subjects must be specified. You don’t have to name the precise service that you’re aiming to market, but it can’t be so broad as to say ‘You agree that we can send you marketing communications’, because the consent must be specific.
  3. The details of the marketer should be recorded so it’s clear who the Data Subject is giving their permission to for purposes of the Direct Marketing.
  4. The Data Subject should have the right to choose which methods of communication they’re happy with and which they don’t want.

That seems pretty specific. Do you have to get this consent in a written format?

That is not specified in POPIA. However, the onus is on the person doing the Direct Marketing to evidence that they have this opt-in consent, so I’d say it’s highly recommended to have something that you can evidence. The law does not say that you can’t get a verbal consent, but if the Data Subject later complains that you’re marketing to them without consent, unless you’ve actually recorded that verbal consent somehow, you won’t be able to prove they gave consent.

OK. Is there anything else I need to know about Direct Marketing under POPIA?

Well, remember that the CPA requirements still stand. So, even if you have consent to market to someone, it still needs to be within the prescribed hours, you still need to check whether they’ve opted out before, and you still need to give an option to ‘unsubscribe’ to the contact.

That all seems quite restrictive. How do we go about securing listings under these conditions?

Just do it within the law. You may contact each person (a new potential client) once after POPIA starts, and use that time to ask if you may call them from time to time to see whether they want information on the value of their home, or if their circumstances have changed and they’re interested in selling. Many people will be reasonable about granting consent, if the approach is reasonable and the type of service is a desired one.

And I guess if people don’t want to receive communications about something and they tell you, they’re unlikely to buy those services anyway.

I imagine so.

Thanks for another enlightening episode. I’m a lot clearer on the Direct Marketing aspect of POPIA, in conjunction with the other laws governing this activity. Just a reminder that we covered these in the last episode and I highly recommend everyone listens to it if they have not already. POPIA is only half the picture!

Indeed. The two episodes go hand in hand, just like POPIA and the CPA. Once again, thank you to our listeners for joining us. Next time, we will answer your specific questions about POPIA and Direct Marketing in the context of Estate Agents. So if you still have questions after the last two episodes and our deep dive into Direct Marketing, please use the link on our website, where you found this podcast, to pose your question. Of course, if we’ve answered all your questions (except those you may need legal guidance on) please also let us know via the link! We welcome and appreciate your feedback. Until next time… goodbye from me.

And thank you again for listening.

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