Johan is a 60-year-old man who has just retired at his beach house in Mosselbay. His only desire is to do some fishing and reading, at least for the first six months of his retirement, preferably without interruption! Johan however receives at least four or five calls weekly from what he refers to as “telemarketers”. He is just about ready to “lose his cool with these people” and approaches an attorney to help him solve this annoying issue.
What is Johans’ Consumer Protection Rights?
In terms of the Consumer Protection Act, 68 of 2008 [hereinafter referred to as “the Act”], Johan does in fact have the right to prevent these telemarketers from bothering him.
When a marketing company employee contacts any person directly, this is described as “direct marketing”. The Act defines direct marketing as follows:
- “to approach a person, either in person or by mail or electronic communication, for the direct or indirect purpose of—
(a) promoting or offering to supply, in the ordinary course of business, any goods or services to the person; or
(b) requesting the person to make a donation of any kind for any reason; providers both the right to privacy in this regard and to completely reject direct marketing.”
In more general terms this means that any form of communication received by a potential client, which was unsolicited, is direct marketing.
Johan further has recourse in terms of the Act, to restrict or reject this form of contact or communication. Section 11 of the Consumer Protection Act gives consumers the right to restrict unwanted direct marketing, stating that the consumer has the right to accept, refuse or pre-emptively block the sender of any direct marketing approach or communication.
Once a consumer has rejected such a direct approach by a marketer, the consumer may demand that the marketer must within a reasonable time after the request, cease any further attempts to directly market its goods to the consumer.
What should Johan do to prevent direct marketing, on a practical level?
When Johan receives a call from a specific entity offering a product that he does not wish to receive direct marketing from, he must expressly advise the consultant/ telemarketer that he does not wish to receive any further marketing communications from the specific service provider and that he wishes not to be contacted by them again.
The service provider is then required to amend its records to reflect that Johan has specifically rejected any form of direct marketing from that specific company.
Let us suppose that Donkey Builders is calling Johan to offer a quote, he must advise the telemarketer that he is not interested in any product from Donkey Builders and that he wishes for his name to be specifically removed from their marketing contact list. Here is an article offering some insight into your rights regarding quotes [https://www.vermeulenlaw.co.za/is-a-quotation-worth-the-paper-it-is-written-on/]
What does it mean to pre-emptively block marketing?
The Act providers for a register to be kept to which register any consumer may add his details and indicating that he does not wish to receive direct marketing from all or a specific service provider. This is however not very practical for the average consumer, most especially since the process of so listing his details is not easily ascertainable.
On a practical level, at Johan could block a number that he knows belongs to Donkey Builders, as per our illustration. He could also block their e-mail address if he is aware of what it is. Here are some handy articles on how to block unwanted telephone calls and emails
This method may however not be 100% effective, especially since large companies usually employ other companies to attend to their direct marketing needs and may have several telephone numbers or email address which they use for the purposes of marketing.
What recourse does Johan have against the service provider if he continues to be contacted?
The act providers that a consumer who has expressly elected not to receive direct marketing should not be so contacted. Should the consumer continue to receive unwanted marketing calls or emails, section 69 of the act provides for several recourses. Johan would be in a position to:
- report the matter to the Consumer Tribunal,
- refer the matter to the relevant ombud if one exists for the industry,
- refer the matter to a Consumer Court if one exists in his jurisdiction,
- refer the matter to any form of alternative dispute resolution,
- file a complaint with the National Consumer Commission or
- institute civil legal action if necessary and all other recourses in terms of legislation has been exhausted.
The Consumer Protection Act offers s myriad of consumer rights, that before its inception seemed dreamlike. It is however incumbent on everyone making use of any service or product, to know what rights they have in this regard in order to receive maximum benefit.
If you are faced with any legal questions regarding your rights as a consumer, our offices are happy to assist with advice and action where required.