Are there laws to stop companies harassing us? [Cape Times (South Africa)]

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(Cape Times (South Africa) Via Acquire Media NewsEdge) Spam. Cold calls. Telemarketing. Call it what you will - few people enjoy being on the receiving end.

Some can't say no to the imploring, insistent voice and end up agreeing to something they don't want or can't afford; others commit to a product or service without realising they've done so.

The big question is: Do we have to put up with the calls - and the e-mails and SMSes - or can we legally bar companies from contacting us? The answer is a little complicated, so I'll attempt to break it down.

The Consumer Protection Act (CPA) states in Section 11 that every person has the right to ask another person to stop contacting them with the purpose of "direct marketing".

It also limits the time marketers may contact you "at home" - an odd term in the age of cellphones. (See sidebar).

That section of the CPA also gives consumers the right to pre-emptively stop companies from contacting them, by registering their details with a "Do Not Contact"-type national registry, commissioned by the National Consumer Commission. Sadly, four-and-a half-years on, no such national registry has yet been set up.

What we do have is the Do Not Contact or Opt Out registry run by the Direct Marketing Association of South Africa (DMASA), which lists more than 100 000 names.

The problem is that it is an industry-run initiative and it isn't compulsory for companies that engage in direct marketing to be a member of the DMASA.

What the CPA allows for is |a registry that will protect South Africans, in theory anyway, from getting any spam from any business, should they choose not to.

If a company - a non-DMASA member - decides to call you every night of the week in an attempt to flog you something, there's no point |in reporting them to the DMASA - it has no power over non-members.

While that company may be contravening the CPA by continuing to harass you when you've told them to stop, I don't rate your chances of getting joy from lodging a complaint with the National Consumer Commission, which has its hands full with arguably more serious CPA transgressions.

What about the Protection of Personal Information Act, popularly referred to as Popi? That piece of legislation gives consumers a lot more power to resist spam than the Consumer Act, in that it requires direct marketers to get our permission to be spammed before they send their first e-mail or make that first call. But while it was passed by Parliament late last year, it has yet to be implemented.

With all this in mind, I asked the National Consumer Commission (NCC) why the national Opt Out registry hadn't been set up four-and-a- half years since the CPA came into effect and to what extent Popi would influence the process.

Responding, Consumer Commissioner Ebrahim Mohamed said the register was being set up, the initial process having been abandoned "due to some technicalities".

The company the commission will appoint to run the registry would charge direct marketers a tariff for the service, Mohamed said, and once the minister determined the tariff, the commission would "proceed to the next phase of revising the expression of interest".

"The last phase would be to determine the company that is suitable to administer the opt-out register." The problem that the public may not appreciate, Mohamed said, was that the commission did not have the financial means to set up the register on its own, "hence the process of recognising a company that can administer the register on behalf of the commission".

"There have been some companies running small opt-out registers, but this has not been done on the scale anticipated for the NCC register. The NCC has to ensure and bear responsibility for personal data/information that will be provided by consumers when opting out." As for the effect of Popi, Mohamed said the commission would have to check whether the CPA's section on the |consumer's right to restrict unwanted direct marketing and the regulation allowing for the setting up of the Opt Out registry "have not been overtaken by events".

South Africans continue to be fair game for direct marketers who believe consumers have no right to resist their advances. It's the commercial equivalent of stalking.

l The Consumer Protection Act allows direct marketers to contact consumers: From 8am to 8pm on weekdays.

From 9am to 1pm on Saturdays.

Not at all on Sundays and public holidays.

Incidentally debt collectors may call alleged debtors up to 9pm on weekdays.

This is without a doubt the question most asked by consumers when it comes to spam.

Reader Tharina Whittaker said she was told by a HomeChoice agent that contact lists were obtained from "the credit bureau".

There is no single credit bureau; there are several. TransUnion is the largest.

Vice-president Owen Sorour confirmed that it was illegal for credit bureaux to sell consumers' information.

"Marketing leads are thus originated and maintained from outside the bureau and are owned by a separate company who would market these leads.

"The marketing database would be purchased from various lead providers/list brokers over time and generally all list providers and marketing-services companies would be members of the Direct Marketing Association of South Africa (DMASA)." The DMASA has a code of conduct and they ensure that members adhere to the Opt Out list.

"A third party that wants to contact consumers (not currently one of its customers) to offer its services or products would appoint a marketing services company who would then act as its agent to initiate the marketing campaign.

"The marketing services company would then use its data sources to segment and pre-vet accounts." If you tell a company that you do not wish to receive further marketing from them, they are legally obliged to remove your name from their database.

l To add your name to the DMASA Opt Out list, go to www.dmasa.org.

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