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Email Marketing & The Law
Unsolicited email ("spam") & pMailer
pMailer is successful because our clients use email ethically and optimally as a communication tool. Together, through awareness of the relevant laws and implementing best practices, emails 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 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:
1. 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.
2. No agreement is concluded where a consumer has failed to respond to an unsolicited communication.
3. 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).
4. 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).
What it means for email marketing?
You need to have an unsubscribe facility (eg. The automated pMailer unsubscribe link) on all emails that are of a commercial nature. Should someone unsubscribe from your mailing list you should never send them further similar emails.
Marketers should also have permission to send a mail to someone as part of a large-scale communication exercise (ie. Sending out to a list) and you need to be able to prove how you got that permission (eg. a 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 email. 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 to investigate. We also send the complaint to you and require a response to explain what happened. In our discretion and where necessary, we then either assist our clients to remedy the abusive activity (always our first option!) or suspend/terminate the offending account. Prefix Technologies 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 marketing strategy. We want our clients to send high volumes of email! 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 you'll be well on your way to e-marketing success!
Where can I get legal advice?
If you feel you would like an expert opinion, please contact our partner legal firm, Chetty Law, leaders in the field of technology and innovation law in South Africa. www.chettylaw.co.za
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