Both David and Davy have done a great job of sketching the background to what I’m about to say to you. As a journalist, it’s my daily job to reinforce that context and to ensure that you are able to view the issue from as many angles as possible.
Firstly there’s some background that we need to understand about the Protection of Personal Information Act. Many legislators would rightly argue that introducing such an act was necessary on the part of government. The idea was not to create an act that was going to be punitive, but one that was going to work towards protecting all of us in an age where information has become so freely available. Living in the e-mail and internet age has changed the nature of our society and the way we interact. Our marketing world as consumers was once limited to the shops in the local vicinity. Think back to the seventies, early 80s and 90s, when everything we sourced came from a local supplier, whether it was clothing, food, or other products. The modern-day reality is very different – in fact, if we’re so inclined, we may decide to almost never leave our homes to shop or buy. It can be done with a credit card, the click of a button online, and notably, the world is now our marketplace, as we transact with businesses on other continents if we so choose.
But this means that in order to interact in that world, people need information. And in this information age, there’s a mental bombardment of individuals with a virtual tsunami of information. The fact that businesses are competing globally means they have to market themselves more aggressively and reach the consumer in more innovative new ways than before. To the average person, this could be intimidating. Bear in mind, that we are also living in an age where private information is often sourced without the permission of people, for nefarious purposes. Take for example the Trump campaign, in which information about the socio-political leanings of members of the electorate were harvested, for the purpose of subtly persuading Americans to vote for Donald Trump instead of Hilary Clinton. This is an example of the type of information marketers can easily use to their benefit once it’s in their possession. So it’s clear the POPI Act has an important role to play in our legislation. But what that act stipulates is technical and important.
There are some pivotal questions we need to ask about the formulation and enactment of the POPI bill. Its origins, for example, are in Europe, and it appears to have been imported to us here in Africa, largely in its European form. So we need to ask further questions about how well-suited Section 69 is to the sophistication of the South African market. Ours is a different market, largely due to the political history of the country, lack of access to education or proper education, poverty levels and the rampant inequality in our society. This suggests that a European model may therefore not be best-suited to consumers whose access to the marketing of products or whose understanding of those products is limited.
Secondly, we have already started our move towards a digital economy in this country. Millions of South Africans now own smartphones and access the internet, particularly social media. But not many of the individuals in lower income-earning groups transact on those smartphones necessarily. So for example, though it’s far more convenient to do so, it’s unlikely many will do their banking online or on a banking app. I use the latter as an example because it gives us a sense of how much more complex transactions can be without access to these kinds of services. I can’t remember when last I walked into a bank to transact. I take it for granted that I can sit at home and bank on my phone at 11 ‘o clock at night if necessary simply because I’m so tied up during the day. Imagine the difficulties of travelling from a peri-urban area or rural area to bank, the cost of transport and the time spent travelling there, transacting and returning home. For many of us, this is impractical in the digital age where time is money. Therefore, being able to transact online, just makes more sense.
The example I’ve given you suggests that while a small part of our population is benefiting from the digital economy, the majority is not. And that, in itself, creates a kind of marginalisation.
David has already mentioned the number of young people who may lose their jobs if the POPI Act is not tweaked. But there are wider consequences for our shrinking economy, that’s seeking to create jobs. It’s often said that, key to this objective are small businesses. But they may face hurdles when trying to break into the market, finding themselves drowned out by larger, more established companies, that have dominated the marketplace for many years, and are able to depend on long-standing relationships with customers that were formed before the age of digital marketing or bigger competitors that can afford expensive above-the-line advertising while SMMEs can’t. The Act will likely limit the ability of new companies to introduce themselves to the consumer affordably, via digital marketing and may also impact on the consumer’s ability to make an informed choice about whether they wish to continue their relationship with a longstanding service provider, or terminate that relationship and look for an alternative for any number of reasons, including affordability and quality of service. This is merely anecdotal, but if asked, many consumers would also perhaps tell you that receiving an e-mail from a prospective business is far less invasive than a call on their private phone from that business as e-mail can be checked at the consumer’s leisure. In my opinion, it is also impractical to suggest that consent can only be obtained from a consumer in hard copy. This is simply impractical for a variety of reasons.
Ultimately, we’re aware that the Consumer Protection Act which also partly dedicates itself to the protection of personal information, states that it was enacted to protect the interests of customers, and to improve access to, and ensure the quality of information customers receive is such that they’re able to make informed choices according to their individual wishes and needs. A few months ago, I was surprised by a court ruling in the case of social grant beneficiaries, who’d had certain amounts deducted from their grants by companies offering funeral policies and the like. Civil society organisation, the Black Sash took this issue to court because it felt strongly, that vulnerable, elderly people were being preyed upon. But interestingly, the court ruled in favour of the companies offering these funeral policies and other financial services, on the grounds that it fell within the rights of social grant beneficiaries to be marketed to, and to have the same access to information about these products that all other South Africans can access on a daily basis, and that to take away that right to marketing would be to marginalise this group and deny them an aspect of their consumer rights. I had anticipated an entirely different outcome, but it was a lesson to me about how much emphasis is placed on our law in general, in protecting the right to know.
So to conclude, I am not a member of your industry and I cannot suggest to you what your next step should be – that’s up to industry experts like David Dickens and Davy Ivins. But I do hope you’ll weigh up both sides of the argument and that there’s enough clarity for you to make an informed decision.