Direct marketing and spam via electronic communications: an analysis of the regulatory framework in South Africa De Jure 42. A look at some of the reasons behind the promulgation of the National Credit Act and the Consumer Protection Act Obiter 217.
INTRODUCTION
General Introduction
David Koni, Chairman of the Procurement Committee, Cotonou Republic Du Benin W.Africa, We need a trusted partner to help us transfer (11.5M USD) ELEVEN MILLION FIVE HUNDRED THOUSAND US DOLLARS.for further investment in your country,. In 1970, "Spam" became the title of a skit by the famous British comedy group Monty Python.
Methods Used to Spam
Framing the Problem
11 Section 14(d) of the Constitution of the Republic of South Africa, 1996 (hereinafter referred to as "the Constitution"). The opt-out mechanism requires the recipient of spam to take action to be excluded from future mailings.
THE CURRENT SOUTH AFRICAN POSITION
The Electronic Communications and Transactions Act
- Discussion of section 45 of the ECTA
- Critique and commentary
Essentially, the consumer's ability to exercise her rights in terms of section 45 is in the hands of the email sender. In this regard, a legal person as a recipient of spam does not enjoy any protection within the meaning of Article 45 of ECTA. USA and South Korea.42 For this reason, the enforcement of consumer rights in terms of section 45 is problematic.
Of these recommendations, he states that the South African government should regularly assess the effectiveness of section 45 of the ECTA.
The Consumer Protection Act and Its Regulations
- Important definitions used in the CPA
- The implications of the CPA and its regulations on direct marketing
- Critique and commentary
The application of the CPA is not limited to natural persons; it includes certain legal entities. As a result, the application of the CPA is broader than that of the consumer protection provisions found. 63 Section 11(4) of the CPA, “direct marketer” in this context refers to a person who authorizes, directs or carries out any form of direct marketing.
At the time of writing, the register as envisaged in section 11(3) of the CPA has not been established.
The ECT Act Amendment Bill
JUDICIAL INTERPRETATION OF THE CURRENT LAWS RELATING TO
- The Facts
- Commentary
- The Court’s Findings
- Concluding Remarks
81 Section 71 of ECTA must be read together with the definition of 'service provider' in section 70. Furthermore, industry players such as Ketler could only rely on the disclaimer provisions in terms of Chapter XI of ECTA if there was one. For example, the requirement that members of an association not encourage the sending of unsolicited mass e-mail goes beyond section 45 ECTA.
We are no longer deprived of judicial interpretation of section 45 of ECTA and general issues relating to spam in South Africa.
THE DAWNING OF THE PROTECTION OF PERSONAL INFORMATION
Background Information
The Ad Hoc Joint Committee asked the Minister to present the privacy and data protection legislation to Parliament "after a full study of the matter and as soon as possible".102 The Minister then turned to the Committee to consider the inclusion of such an investigation in his program. . The Commission compiled Discussion Paper 109 which included the preliminary findings of the investigation and invited parties to provide comments regarding said findings.103 In 2009, a report of the Commission's final findings and recommendations, including the draft law, was submitted to the Minister of Justice. . and constitutional development.104 This will be discussed below.
The Report on Privacy and Data Protection
- Summary of the Report’s recommendations which are relevant to this
Another rationale for legislative reform is that South Africa's failure to provide adequate information protection of international standards could create barriers to international trade.107 This was a major consideration at the time the report was prepared by the Commission as South Africa anticipated the 2010 FIFA World Cup . The European Union Data Protection Directive (Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data) ("EU Data Protection Directive") provides, that personal data may only flow outside the EU's borders to countries that can guarantee an "adequate level of protection". The legislation prohibits the transfer of personal data to countries that do not ensure an adequate level of information protection.
The Commission's recommendations are largely in line with international trends in information protection legislation.
Preliminary Observations of POPI
POPI's preamble states that "...the need for economic and social progress, within the framework of the. It is my submission that spam can be seen as one of the unnecessary impediments to the free flow of information (which POPI seeks to removed), which can hinder economic progress in the long term. Most small and medium-sized enterprises of the South African economy are unable to provide for the ongoing costs associated with controlling and combating spam.
This article examines the legislation of the Canadian jurisdiction, which has become prominent in the area of personal information protection, and compares this position with the spam provisions in POPI.
Application of POPI
- Important definitions used in POPI
The definition of “direct marketing” is identical to the definition of the same term in the CPA, with the exception that POPI refers to a data subject.115 The definition concerns. 115 See Chapter 2 in section 2.2.1 'The implications of the CPA and its regulations on direct marketing'. This simplistic definition of “electronic communications” differs from the definitions of the same term in both the CPA and ECTA.
POPI incorporates the broad definition of "personal information" found in ECTA except that POPI refers to "a person" which means a natural or legal person, while section 45 of ECTA refers to a "consumer".
Noteworthy Exclusions in POPI
Notwithstanding the exclusions from the applicability of the law to the processing of personal information, it is clear that, read in conjunction with the definition of “personal information”, the broadly defined term “processing” would not be a difficult task to achieve the protection of POPI extend to most people. cases of treatment, use or even destruction of someone's personal data. Chapter four of POPI creates two further exceptions in relation to the information regulator's powers and in relation to certain functions. For more information about this, see appendix C of the Code of Advertising Practice, available at.
It is clear that the interests of the data subject are prioritized in this regard.
Transforming the Regulatory Framework of Direct Marketing and Spam: Employing
He then proceeds to pay for the service at the salon reception. Collecting the customer's email address in this way ensures that the responsible party or the salon does not breach section 69. It should be noted that "processing" in relation to POPI includes the collection of personal data.
Section 69(4) POPI also requires that every direct marketing message contains information about the identity of the sender or the person on whose behalf the message was sent and the address or other contact information to which the recipient can send a request to stop the communication.
Directories and Automated Decision-Making
Critique and Commentary of Chapter 8 of POPI
The problems associated with the use of false or misleading e-mail headers by spammers have been discussed previously.145 POPI, like ECTA and CPA, does not address problems associated with obfuscation of e-mail headers. POPI's section 69, subsection 4, stipulates that the direct marketing communication must, among other things, contain information about the identity of the sender and an address to which the recipient can send a request to stop further communication. Another concern that has been discussed as a criticism of section 45 of ECTA is that POPI does not provide for measures given that most spam originates outside the South African jurisdiction.
Attention should be paid to the extraterritorial extension of national laws such as POPI.
The Eight Conditions for the Lawful Processing of Personal Information
- Condition 1: Accountability
- Condition 2: Processing limitation
- Condition 3: Purpose specification
- Condition 4: Further processing limitation
- Condition 5: Information quality
- Condition 6: Openness
- Condition 8: Data subject participation
The data subject must also be informed of this purpose.159 This condition also provides for certain requirements for the storage of personal data and the limitation of the processing of personal data. There is often concern about the enforcement of personal information protection laws, especially when it comes to potential privacy threats discovered over the Internet. Firstly, this could be discovered through the POPI responsible party's obligation to disclose compromised personal information, and secondly, the most likely source could be the individual data subjects themselves, through an investigation following the submission of a complaint to the Information Regulator.
The scope of the order may vary from an individual's information to the processing of all personal information.
Concluding Remarks
An approach to data protection with similar characteristics of a lack of common understanding between legislation and regulations has been observed in European consumer protection legislation.173 Papadopoulos suggests that the legislator obtain a comprehensive, holistic and comparative overview of current trends in legislative interventions, or at least a proper efforts to harmonize POPI and CPA.174. For this reason, no protection is afforded to a registrant who receives spam containing newsletters, religious messages, political messages, newsletters, urban legends, chain letters, virus warnings and virus hoaxes and other carefully worded communications with fraudulent or misleading content.175 These types of non-commercial communications are as, if not more, common than spam with commercial content. The Information Regulator will play an important role in determining the success of POPI's aim to give effect to the constitutional right to privacy by ensuring respect for and promotion.
173 See generally C Cuijpers; B Koops “How fragmentation in European law undermines consumer protection: the case of location-based services E.L.
CANADIAN INSPIRATION; WHY SPAMMERS SHOULD REMOVE
- Background Information
- Introducing Canada’s Approach to Spam
- Preliminary Observations of CASL
- Application of CASL
- Important definitions used in CASL
- Noteworthy Exceptions and Exclusions in CASL
- CASL’s Opt-in Mechanism
- Express or Implied Consent
- The Unsubscribe Mechanism
- Noteworthy Enforcement Measures
- Critique and Commentary of CASL
A further new concept for CASL is the requirement that the sender of the communication ensure that the contact information contained in the message is valid for at least sixty days after it is sent. For the purposes of section 6 of CASL, consent is implied where:193 . a) the sender or the person who causes or allows the message to be sent has an existing business relationship or an existing non-business relationship with the recipient of the message. Examples of an existing non-commercial relationship include a relationship between sender and recipient of the message that arises from the recipient's membership of the sender, namely a voluntary organization, club or association.
The provisions with specific application to the commercial communication of the spam message are unambiguous.
CONCLUDING REMARKS AND SOME SUGGESTIONS
- Industry Self-Regulated Regime
- Anti-Spam Awareness Campaigns
- Employ a Task Force on Spam
- The Definition of Spam
- Regular Review of Anti-Spam Measures
- The Unsubscribe Mechanism in Conjunction With The Opt-In Mechanism
This shows that a further worthy approach to combat spam lies primarily in the need for consumer awareness. By 2005, the country was removed from the list.208 This shows us that spam can be defeated through effective anti-spam legislation and an elaborate public awareness campaign. It has focused on engaging with stakeholders in the public and private spheres to implement an awareness initiative to combat spam.
The reason is that technology is fast-paced and ever-changing; Measures that are considered appropriate at this moment may not be considered so in five years.
