Unsolicited email & SMS ("spam") & pMailer
pMailer is successful because our clients use email and SMS ethically and optimally as a communications tool. Together, through awareness of the relevant laws and implementing best practices, email and SMS can be used as a legitimate marketing platform. By becoming a pMailer client, you have access to advice and resources that assist you in effective email and SMS marketing.
Do we have Spam laws in South Africa?
In the South African context we are guided by the all-important ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT of 2002 which states:
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Any person who sends unsolicited commercial communications to consumers, must provide the consumer: with the option to cancel his or her subscription to the mailing list of that person; and with the identifying particulars of the source from which that person obtained the consumer's personal information, on request of the consumer.
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No agreement is concluded where a consumer has failed to respond to an unsolicited communication.
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Any person who fails to comply with or contravenes subsection (1) is guilty of an offence and liable, on conviction, to the penalties prescribed in section 89(1).
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Any person who sends unsolicited commercial communications to a person, who has advised the sender that such communications are unwelcome, is guilty of an offence and liable, on conviction, to the penalties prescribed in section 89(1).
The new CONSUMER PROTECTION ACT came into effect on the 1 April 2011. This has some additional ramifications for email and SMS communications if they are used for direct marketing purposes.
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Direct marketers are prohibited from contacting consumers during the following times:
- Sundays and Public Holidays
- Saturdays before 9am and after 1pm; and
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All other days between 8pm and 8am.
- Consumers have the right to opt out of received direct marketing communication by registering on the national do-not-contact registry. This has not yet been established but once it has been your database needs to be checked against this registry.
Please also ensure that the content in your communications comply with the various disclosures, rights and cooling off periods required by the act.
What does it mean for email and SMS marketing?
You need to have an unsubscribe or opt-out facility (e.g. the automated pMailer unsubscribe link) on all emails and SMS communications that are of a commercial nature. Should someone unsubscribe from your mailing list, you should never send them further similar emails or SMS messages.
Marketers should also have permission to send an email or an SMS to someone as part of a large-scale communication exercise (i.e. sending out to a list) and you need to be able to prove how you received that permission (e.g. paper form, a contract, pMailer registration form statistics report, telephone conversation recording ,etc). The recipient has to agree to receive electronic communications from you and you need to keep a record of it. Then you can send them promotional communications.
This law doesn't mean you can't ever send anyone an unsolicited communication. For instance, emailing a particular person whose email address is on the website of a company with whom you'd like to do business is not an offence. That is a one-to-one communication that is part and parcel of going about your work.
How does pMailer deal with abuse complaints?
These matters are taken very seriously. When pMailer receives an abuse complaint from a consumer or Internet Service Provider (ISP), we immediately look at the activity of the pMailer account holder and the messages in question as part of our investigation. We also send the complaint to you and require a response as a means of an explanation in your defence. In our discretion and where necessary, we then either assist our clients to remedy the abusive activity (always our first priority!) or suspend/terminate the offending account. pMailer reserves the right to suspend and/or terminate pMailer accounts at any time.
Unacceptable content, whether you had permission to send a mail or not, is not permitted and accounts will be suspended immediately. Pornography, trading in illegal substances, defamatory remarks, etc. will not be tolerated.
Remember, "I didn't know" is not a good enough answer - read the terms and conditions of service carefully and be a responsible marketer.
Help us, to help you!
If you're unsure about anything, rather communicate with our experienced sales consultants before you embark on your email or SMS marketing strategy. By working together, we can ensure that you market to as wide an audience as possible while ensuring you comply with the legislation. Follow our advice and you'll be well on your way to e-marketing success!
Legal Advice
Please note that this information should not be construed as legal advice. We attempt to assist and guide our customers where possible but are not legal experts. For a professional legal opinion, please consult a lawyer.
