Getting an enforcement notice from the regulator is not the worst thing that can happen to FT Rams Consulting or any other non-compliant organisation. You will agree with me, after reading the discussion below, that getting an infringement notice is worse. Read, then, and find out how to avoid the very undesirable situation of receiving an infringement notice.
Enforcement notice vs infringement notice
What the regulator said by issuing an enforcement notice
When the regulator issued an enforcement notice, they were telling FT Rams Consulting that the regulator had investigated the complaint from the data subject, found evidence of unlawful direct marketing, referred the matter to the Enforcement Committee, and received a recommendation from the Enforcement Committee saying that the regulator must issue the enforcement notice. The regulator was effectively firing a strong warning shot to all organisations, especially direct marketers, about the importance of complying with POPIA.
The statement the regulator would make by issuing an infringement notice
If the regulator issued an infringement notice, they would be saying that FT Rams Consulting not only failed to comply with POPIA, but that the failure is a POPIA offence and warrants punishment in the form of a fine. The regulator would be saying that punching a hole in the company’s bottom line is the only way to bring them in line with POPIA.
When does the regulator generally issue an infringement notice?
The regulator can issue an infringement notice when it finds that an organisation has committed a POPIA offence by:
- obstructing the regulator or any member of the regulator from completing a statutory task;
- obstructing any employee or member of the regulator from executing a search warrant;
- failing to follow the regulator’s instructions (such as lying under oath) during a hearing that the regulator conducts as part of an investigation;
- failing to comply with:
- an enforcement notice; or
- an information notice, by responding dishonestly (knowingly or recklessly) or ignoring the information notice.
The decision FT Rams Consulting has to make
The part in bold is especially important, because FT Rams Consulting has already received an enforcement notice and is now facing a huge decision. They need to decide whether they will:
- honour the enforcement notice entirely or partially, and then approach the regulator to ask for the regulator to set aside or vary the enforcement notice and actions that the regulator requires from FT Rams Consulting;
- ignore the enforcement notice;
- respond dishonestly or with complete denials of the regulator’s findings; or
- challenge it in court.
If FT Rams Consulting choose to do what is under option 2 or 3 of the list, they will likely get an infringement notice and a massive fine. If they choose to do what is under option 4, POPIA effectively suspends the enforcement notice until the court resolves the matter. With option 1, they would potentially buy themselves some understanding from the regulator, because they would have shown some measure of good faith by partially complying with the enforcement notice. The regulator would likely not set the enforcement notice aside, but would potentially give FT Rams Consulting more time within which to comply.
Actions you can take
To limit or avoid the possibility of receiving an enforcement notice or infringement notice, you should:
- Empower yourself to properly manage and resolve with disputes with the Regulator by joining the data protection programme and working through the resolving data protection disputes module, or contacting us;
- Resolve complaints from data subjects before they escalate to the regulator, by asking us to draft a Complaints Policy for you;
- Ensure that you direct market lawfully by joining Michalsons data protection programme (which includes the POPIA lens) and working through the principled direct marketing module;
- Obtain lawful consent from data subjects by asking us to help you do it correctly;
- Make sure your email marketing is lawful by getting the Michalsons Email Marketing Checklist; and
- Use email lawfully by asking Michalsons to help with email compliance.
