The long-awaited Protection of Personal Information (POPI) Act regulations were published in September last year. They don’t say much, but they do spell more than just sleepless nights for direct marketers. If accepted as they are, these regulations could send direct marketing in SA back to the stone age.

I’m the first to admit I hate spam when it’s uninvited and comes from a company I have never dealt with before or given my details. Mild irritation quickly turns into rage when you realise your private information is being sold as a “lead” without you knowing. These are some of the concerns meant to be addressed by the POPI Act, which will come into effect sometime during 2018.

The act will make it mandatory to ask for consent before sending electronic direct marketing to a person for the first time. It will also make it virtually impossible to sell people’s private information to third parties without their permission. This all sounds like a bloody good idea, I hear you say. Well, yes, in principle – but only if a balanced approach is taken.

As much as we hate spam, we must also acknowledge that not all direct marketing is Freddy Krueger-level evil

Even as an avid supporter of privacy rights and control over personal information, I’m concerned that the draft regulations that outline the way direct marketing consent must be obtained are the kind of overkill that could hurt SA’s digital economy significantly. As much as we hate spam, we must also acknowledge that not all direct marketing is Freddy Krueger-level evil.

The evolution of digital marketing and advanced analytics enables marketers to better target their communications. This means they can give consumers information about product and services that can help them make informed decisions, all conveniently delivered to their inbox or devices.

Here is a simple example. A woman has returned to work after maternity leave. She would probably really appreciate a heads-up from a retailer that its nappies are on special this week only. When you juggle work, life and two kids, there is hardly any time left to scan traditional media for deals and specials, never mind pop into a shop to compare prices. If it weren’t for the email she saw in her inbox, she would have missed out on the deal. A few small breaks like this per month could make a huge difference when she tries to balance her budget.

I’m not saying consumers should not have a choice in whether to receive direct marketing. I just want the choice to be informed, and I want consumers to be able to make it accurately. Which brings me to my next concern: the format of the consent.

Section 69 of the POPI Act says that if you want to send electronic direct marketing to people you haven’t contacted before, you first have to ask for consent. The new Information Regulator was given the power to prescribe what such consent should look like.

This is what it came up with:

And it goes on…

And on…

And on… (wait, is that an actual signature?)

Where to start? Well, it is two pages long and not in plain language. This means most South Africans would not be able to understand it, making it difficult for them to give their informed consent. Which is kind of the point of the act – to give back control to people.

It is also not technology neutral. Most direct marketing is done via digital channels, yet the form requires a physical signature even though there is no legal requirement for it. Biometric information such as signatures are sensitive and should never be collected if it is not absolutely required.

When you apply big-picture thinking to all of the above, you soon spot a more serious issue. The regulations, as they stand, are not in keeping with international best practice. The proposed approach will affect South African businesses’ ability to compete globally. Foreign business will be able to market more efficiently, at the expense of local businesses and our economy.

The POPI Act is coming dangerously close to over-regulating South African businesses. This could be detrimental not only to our economy, but also to the very consumers it is trying to protect.

I’ll be discussing the issues above and related matters in more detail during my talk at the IAB Digital Summit 2018 on March 1.

Elizabeth de Stadler is the CEO of Novcon and a consumer law specialist.

This article was paid for by the IAB SA. The IAB Digital Summit and Bookmark Awards are made possible thanks to the support of its sponsors: Accenture Interactive, Gumtree, DStv Media Sales and SABC News; and supporting partners: 360 Degrees, Bizcommunity, CZU Studio, eNCA, Everlytic, Meltwater, NMPi, Novcon, Pernod Ricard SA, The Talent Boom and Vodacom.