Intellectual Property Rights from Publicly Financed Research and
R 385
Consumer Protection Act, 2008 (Act No. 68 of 2008)RegulationsConsumer Protection Act Regulations4. Mechanisms to block direct marketing communication |
| 1) | For purposes of section 11(1) and 11(2) of the Act, if a consumer has— |
| a) | informed the direct marketer; or |
| b) | placed any communication or sign on a postal box, post office box or other container for mail, indicating that he or she does not wish to receive any material related to direct marketing, then the direct marketer— |
| i) | may not place or attach any material primarily aimed at direct marketing, in whichever physical format, in or on or near the postal box, post office box, container, or in, on or near the fence, gate or any other part of the premises of the consumer; and |
| ii) | must provide the consumer with written confirmation of the receipt by the direct marketer of the notice referred in paragraph (a) above. |
| 2) | Display of the phrase "no adverts" or the image or a similar reproduction thereof prescribed in Annexure A is sufficient to meet the requirements of paragraph (b) of subregulation (1). |
| 3) | For purposes of section 11(6) of the Act, the following principles are required as a minimum for the operation of a registry contemplated in section 11(3): |
| a) | the registry must be capable of accommodating all persons in the Republic and cover the whole geographical area of the Republic; |
| b) | the registry must at all times be accessible to all persons in the Republic for purposes of registering a pre-emptive block, without payment of any fee, but the person registering must pay the actual cost of the type of communication available for registration; |
| c) | a consumer may register— |
| i) | his or her name, identification number, passport number, telephone number, cell phone number, facsimile number, e-mail address, postal address, physical address, a website uniform resource locator ("URL") or any other identifier which the operator of the registry makes provision for; |
| ii) | the consumer's own global address for any website or web application or site on the world wide web; |
| iii) | if the operator of a registry so allows, a pre-emptive block for any time of the day or any day of the year; or |
| iv) | if the operator of a registry so allows, a comprehensive prohibition for any medium of communication, address or time whatsoever; |
| d) | any pre emptive block registered in accordance with this regulation becomes effective 30 days from the date on which it is registered; |
| e) | the administrator of the registry may not under any circumstances whatsoever provide, sell, or otherwise dispose of any information contemplated in subregulation (c) to anyone, including any organ of state, except with the written and express permission of the consumer concerned, by order of a court of law or the operation of law; |
| f) | the administrator of the registry may, on receipt of an application, only confirm whether or not a pre-emptive block has been registered by the consumer, and may not provide any detail to the direct marketer in respect of any identifier provided by the consumer to the registry; |
| g) | except in respect of those existing clients where the direct marketer has proof that the existing client has after the commencement of these regulations expressly consented to receiving direct marketing from the direct marketer, a direct marketer must assume that a comprehensive pre-emptive block has been registered by a consumer unless the administrator of the registry has in writing confirmed that a pre-emptive block has not been registered in respect of a particular name, identity number, fixed line telephone number, cellular telephone number, facsimile number, pager number, physical address, postal address, e-mail address, website uniform resource locator (URL) global positioning system co-ordinates or other identifier which the operator of the registry makes provision for submitted by the direct marketer for purposes of subregulation (f); |
| h) | the administrator of the registry must on request provide a consumer with a copy of an application contemplated in subregulation (f) as well as a copy of the administrator's reply, the identity and registered address of the direct marketer who has submitted that application, and the name and contact details of the responsible person contemplated in subregulation (i); |
| i) | upon payment of a prescribed fee, if any, every direct marketer must register with the administrator of the registry as such, and must supply his, her or its postal and physical business address, telephone number, facsimile number, email address, and the name of a person who is responsible for any applications to be lodged under this regulation, and the telephone number, facsimile number, e-mail address of that responsible person; |
| j) | every direct marketer must annually on the date of registration in writing confirm the details contemplated in subregulation (i); |
| k) | the registry may not accept an application from a direct marketer who has not been registered by the administrator as a direct marketer as provided for in subregulation (i) or confirm the details as contemplated in subregulation (j); |
| l) | the administrator of the registry must at any time allow an employee of the Commission in the course and scope of what is required in executing their duties, and allow him or her to make excerpts or copies of such records; |
| m) | the prohibition contained in subregulation (f) does not apply in respect of information requested by a consumer himself or herself. |
| 4) | The administrator of the registry must— |
| a) | pro-actively and to the satisfaction of the Commission put in place sufficient security arrangements to prevent the manipulation, theft or loss of data in the registry; |
| b) | pro-actively put in place screening and validation processes in respect of any person applying to register as a direct marketer; |
| c) | comply with any law providing for the protection of personal information or the protection of privacy; and |
| d) | from time to time in all official languages conduct a public information campaign as required and approved by the Commission. |
| 5) | In the event that the Commission recognises a registry as authoritative as contemplated in section 11(3) of the Act, the Commission must enter into an agreement with the administrator of that registry inter alia to— |
| a) | expressly agree and confirm that the Commission, despite anything to the contrary, remains the sole custodian of all information collected and that the administrator has no rights or legitimate expectations whatsoever in respect of the use, disposal, retention or publication of all information whatsoever collected by the administrator of the registry during the period of the agreement, and that the Commission at all times ultimately remains in control of the registry; |
| b) | ensure full compliance with the Act, this regulation and all other relevant law; |
| c) | ensure, with appropriate sanction, that the administrator of the registry or any of its shareholders, members, affiliates or interested parties may not financially or otherwise in any way whatsoever benefit from administering the registry other than receiving payment from the Commission for rendering that service; |
| d) | ensure the implementation of, to the satisfaction of the Commission, screening and validation processes in respect of any person— |
| i) | applying to register as a direct marketer; |
| ii) | employed or engaged by the administrator to work with information collected in the registry; |
| e) | ensure that appropriate and effective mechanisms, procedures and processes are continuously maintained by the administrator to ensure the availability, safety, retention and physical and moral integrity of all information collected and administered by the administrator, to the satisfaction of the Commission; |
| f) | provide the Commission and the Department with full and immediate access to the whole of the registry, and the premises and apparatus in or on which it is retained or backed up; |
| g) | provide that the administrator of the registry must immediately upon termination of the agreement, in respect of all information whatsoever collected by the administrator of the registry during the period of the agreement to the Commission, as directed by the Commission— |
| i) | surrender all information whatsoever that it has collected during the period of the agreement to the Commission in any format directed by the Commission; |
| ii) | fully and in the utmost good faith co-operate with the Commission to ensure the uninterrupted availability of the registry to the general public and to direct marketers; |
| h) | provide for adequate controls and oversight mechanisms; |
| i) | provide for verifiable service levels and standards; |
| j) | provide for appropriate and effective sanctions should applicable law and the agreement in any way not fully be complied with by the administrator of the registry; |
| k) | provide for effective mechanisms for the general public to report problems with the administration of the registry to the Commission; |
| l) | provide for the way in which the administrator may publish and market the recognition of its registry as authoritative; and |
| m) | provide for any other matter the Commission deems necessary or expedient. |
| 6) | Nothing in this regulation should be interpreted as restricting the Commission's responsibility for or accountability in respect of the registry. |
