Maryna holds the BA, LLB, LLM degrees and is a Director at the Cape Town branch of STBB. She is an admitted Attorney, Notary Public, Conveyancer and Insolvency Practitioner with many years of experience in the fields of property law, conveyancing and the laws relating to corporate compliance (especially in respect of the FICA and POPIA laws). Up until 2018 she was also head of the firm’s national marketing portfolio. She is a seasoned public speaker and presenter, both in person and online. She prepares text for the majority of STBB’s internal and external publications and is editor and co-writer for two pivotal publications in the South African real estate industry – the ABC of Conveyancing (JUTA) and Delport’s South African Property Law and Practice (JUTA).

Article published | POPI Act and cold calling: a tricky matter – Property Professional

There exists warranted confusion about the full extent of the impact of POPIA (the Protection of Personal Information Act) on cold calling as a form of direct marketing. Let’s have a look at what we know for sure and where there may be uncertainty.

Electronic direct marketing and consent

According to POPIA, direct marketing is electronic communication that is directed at an individual or entity and which promotes or offers to supply any goods or services. Examples include emails, SMS messages, messages sent via social media platforms directly to a specific individual and advertising sent to a custom audience via social media platforms (ie, where it is known who the recipients are).

Once categorised as direct marketing, an estate agency must then ascertain whether an opt-in consent must be obtained. There are two scenarios.

  • If this is a first approach to the person, consent must be obtained for any unsolicited (ie, that person did not ask for it) marketing to that person. In other words, where an estate agency wants to contact a person for the first time with marketing communication which was not requested (unsolicited), the agency must obtain consent before sending electronic marketing to individuals. The agency may approach someone for direct marketing consent once only, and provided that they have not withheld consent previously.
    There is a form (Form 4) in the Regulations to POPIA that sets out an example of such a consent. Agencies may use it as is, or choose to adapt it and make it more attractive than the legislature’s attempt (whilst making sure the necessary information is contained therein so that the person knows at all times what marketing he is consenting to and from whom it will be received).
  • On the other hand, when it comes to contacting your existing customers, there are three criteria that need to be met before you can start marketing to them directly:
  1. If the client’s contact information was obtained in the context of a rendering a service (such as assistance with a sale or lease of immovable property);
  2. If the agency wants to inform that client of similar offerings;
  3. If the client is given opportunities to refuse the direct marketing, both at the time the information is collected and every time marketing is directed to him/her. For example, if an agent has an existing relationship with a property investor in terms of which he or she shall find options in new developments for purposes of leasing, marketing new suitable developments to that client will generally be in order provided an opt-out option appears in each electronic marketing message.

The estate agency must further manage its own client databases effectively and keep records of where, how and when the personal information was initially obtained; whether the person is an existing customer and, if so, in respect of what products or services; whether the person has consented to receiving direct marketing; and whether the person has unsubscribed from receiving direct marketing.
It is advisable therefore to:

  • use bulk email and SMS software that keeps track of opt-in and opt out information and
    automatically includes an automatic opt out on each message sent to existing clients and
    others that have opted-in to receive marketing; and to
  • ask people directly if they may be added to the agency’s database.

Using other databases

The business of buying and selling of personal information is tricky. In the context of POPIA, “personal information” refers to information relating to an identifiable, living natural person (and, where applicable, a juristic person), including your gender, marital status, age, identity number, email
address, telephone number and physical address. There are a host of companies that have built up huge databases of contact details (including phone numbers and email addresses of individuals) and these are bought and sold on the open market. Often estate agents make use of these.

The provisions in POPIA requires of such lead generation companies to process (“processing” of personal information basically refers to anything the company can do with it, from receiving, storing, updating and disseminating it, through to erasing or destroying it) their databases in compliance with the Act. The generation of the lists must therefore be managed a lot more effectively than was the position in the past so that the records reliably record specific details, amongst other things: where, how and when the personal information was initially obtained; whether the person has ‘opted in’ or given their consent to be marketed to in this fashion.

Cold calling

As mentioned before, estate agents may not without consent send unsolicited SMS’s or automated calls, as these are fall within the definition of direct marketing in POPIA. Agents may still do cold calling though, as this is a personal (not electronic) way of direct marketing and therefore not prohibited by the provisions of POPIA. The recipient of the call may ask the agent to stop contacting him or her, and this must then be adhered to.

However, where the estate agent uses lists purchased from a lead generation business, the position is trickier, as the estate agent will have to obtain confirmation from the lists provider that the records have been obtained and stored in a way that is compliant with POPIA and that consent is in place, as indicated above. That is generally difficult, as this was not the practice in the past to record the additional detail or to obtain consent.
When obtaining these records, it will be advisable for the estate agency to obtain confirmation from the provider of the records that the data provided has been obtained and recorded in a way that is POPIA compliant.

Article published in Property Professional 3 September 2020

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