The Department of Trade, Industry, and Competition (DTIC) plans to make CPA amendments to the Consumer Protection Act (CPA) regulations. These CPA regulation amendments aim to address direct marketing practices in South Africa by introducing a National government-run opt-out registry and setting additional requirements for direct marketers. If the DTIC makes the CPA amendments, direct marketers will face more regulatory red tape. The National Consumer Commission (NCC) must manage an opt-out registry. Consumers will have more control over their personal information and who can contact them for marketing purposes.

Every direct marketer will be impacted and must consider what action to take to comply.

Insights on the CPA amendment

The combined effect of the Information Regulator’s classification of direct marketing as an electronic communication under POPIA, the guidance note on direct marketing in South Africa, and the proposed CPA amendments suggest a strong regulatory trend to severely limit direct marketing practices. This is not a coordinated approach between different departments and appears to be a mere coincidence that direct marketers are on the receiving end of additional regulatory attention.

A significant challenge will be managing and processing the personal information required to maintain the pre-emptive opt-out registry. The Commission will handle substantial personal information, necessitating stringent security measures to mitigate potential risks.

Purpose of the CPA amendment to create a National Opt-Out Registry

The DTIC highlights that South African consumers are increasingly exposed to intrusive marketing. To tackle this issue, the proposed CPA regulation amendments aim to regulate direct marketing calls by establishing a pre-emptive opt-out registry.

Proposed CPA regulation amendments

The draft amendments bring several changes to Regulations 1 and 4 of the original Consumer Protection Act Regulations.

Regulation 1: short title and definitions

  • Addition of “cleansing” where “cleansing” means the process whereby the direct marketer cleanses data sets of consumers who have registered a pre-emptive block from their database.
  • Substitution of the definition of “Department” so that “Department” means the Department of Trade, Industry and Competition.
  • Addition of “direct marketer” where “direct marketer” means a person who engages in direct marketing.
  • Addition of “electronic communication recipient” where “electronic communication recipient” means a consumer who receives electronic communication from the direct marketer and has registered a pre-emptive block.
  • Addition of “pre-emptive block” where “pre-emptive block” means registering a block on the opt-out registry established by the Commission as contemplated in section 11(3) of the CPA to prevent any unwanted electronic communication from direct marketers.

Regulation 4: mechanisms to block direct marketing communication

  • Consumer Registration: Consumers may now register a pre-emptive block on the opt-out registry, which must be accessible at all times, barring technical interruptions.
  • Direct Marketer Registration Requirements:
    • Direct marketers must register annually on the opt-out registry through an electronic form.
    • They must ensure all electronic communications are identifiable by name, electronic address, physical address, and contact information.
    • They must maintain up-to-date information on the opt-out registry and ensure their communications are identifiable.
    • Direct marketers may not send communications to consumers with a pre-emptive block.
    • They must remove data of consumers with a pre-emptive block monthly.
    • Only registered direct marketers on the opt-out registry may engage in direct marketing.
  • Consumer Responsibilities: Registered consumers must provide accurate registration information and keep their registry information up to date.
  • Commission Responsibilities:
    • The Commission will use registry information solely to operate the opt-out registry and will not disclose confidential information without consent unless required by law.
    • It will verify registration information with relevant state organs and maintain guidance on its website to assist users.
    • In cases of registry inaccessibility for over 24 hours, the Commission will take steps to inform the public.
  • Filing Fee Structure:
    • The schedule attached to the CPA amendment outlines the fee structure and annual renewal fees.
    • Late renewals will incur a 75% penalty on top of the annual renewal fee.
    • Tariff adjustments will occur every three years.

Submission deadline has passed

Stakeholders had 45 days from 28 October 2024 to submit their comments. Thursday, 12 December 2024 was the last day to submit comments. Since then the Minister Parks Tau has indicated that most of the submissions were positive and he has planned a rollout in the 2025/26 financial year ending on 31 March 2026.

What else can you do?