Can you send Physical Mail on an Opt-out Basis?

People often ask us whether they can send physical mail (the kind you get in your post box) for the purposes of direct marketing on an opt-out basis. So, send mail to people until they tell you to stop. It is a difficult answer and requires an understanding of the whole of POPI.  You cannot just look at one section.

What does the law say?

Section 69 of the Protection of Personal Information Act (POPI) is irrelevant because that section only deals with electronic communications. A physical mail is not electronic. So what is relevant? Section 11 is relevant. It says that personal information may only be processed if:

Everyone focuses on consent and therefore says that people need to opt-in to you sending them physical mail. But this is not the end of the story. What about 11(1)(f) as a ground of justification?

What does the South African Law Reform Commission say?

The South African Law Reform Commission says the following in their Privacy and Data Protection Report:

The answer to the question is therefore yes – you can argue that you can send physical mail on an opt-out basis. At least until the Information Regulator tells you that you can’t. Remember this article relates to physical mail and not electronic communications. We can help you to market lawfully.