Are all unsolicited emails necessarily SPAM emails?

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With the introduction of the Electronic Communications and Transactions Act, Act No. 25 of 2002 (“the ECT Act”) unsolicted emails now have a legal definition and must meet certain requirements. SPAM per se is not illegal in South Africa. However, if a sender fails to do one of three things she is guilty of an offence and liable on conviction to an unspecified fine, or a maximum of 12 months imprisonment.

Here is the specific text of the ECT Act relevant to spam:

Unsolicited goods, services or communications

45.(1) Any person who sends unsolicited commercial communications to consumers, must provide the consumer:-

(a) with the option to cancel his or her subscription to the mailing list of that person; and

(b) with the identifying particulars of the source from which that person obtained the consumer’s personal information, on request of the consumer.

(2) No agreement is concluded where a consumer has failed to respond to an unsolicited communication.

(3) Any person who fails to comply with or contravenes subsection (1) is guilty of an offence and liable, on conviction, to the penalties prescribed in section 89(1).

(4) Any person who sends unsolicited commercial communications to a person who has advised the sender that such communications are unwelcome, is guilty of an offence and liable, on conviction, to the penalties prescribed in section 89(1).

Note: You can download a copy of the ECT Act online via the Government’s website: http://www.info.gov.za/view/DownloadFileAction?id=68060

In order to escape the penalties contained in section 45 of the ECT Act, most (if not all) legitimate businesses include text and links at the bottom of each and every email which they send out (but only on the emails considered to be of a marketing or advertising nature), which enables the receiver to OPT OUT of future emails.

Section 45(1)(a) after all requires that “[a]ny person who sends unsolicited commercial communications to consumers, must provide the consumer with the option to cancel his or her subscription to the mailing list of that person…

Protection under the Consumer Protection Act, No. 68 of 2008 (“CPA”)?

The CPA deals with SPAM (albeit indirectly) through its direct marketing provisions contained in section 16 which, to a certain extent overlaps with SPAM. It would therefore cover ‘physical’ SPAM (such as flyers left in postboxes) and telephone marketing – but not necessarily electronic SPAM. The CPA also follows an “opt-out” regime and provides every consumer with the right to ask direct marketers to desist from engaging in any direct marketing (whether electronic or otherwise).

As you can see, marketers and businesses need to ensure that each email that is of a commercial / marketing nature has an unsubscribe or opt-out facility (e.g. the automated newsletter unsubscribe link). Should someone unsubscribe from your mailing list, you should never send them further similar emails.

Ashersons Attorneys

Ashersons Attorneys

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