The Minister of Trade, Industry and Competition published draft amendments to Regulation 4 of the Consumer Protection Act 68 of 2008 (“CPA”) for comment late in 2024. The amendments relate to direct marketing communications in South Africa providing for an opt-out registry as well as a pre-emptive block on direct marketing. In this article, we highlight some of the proposed amendments and how this may be a game changer for consumers and direct marketers.


Legal framework governing direct marketing in SA
The South African legal framework allows for direct marketing practices to be engaged in, but there are legal rules that regulate these activities. Presently the legal position in respect of direct marketing is governed by the CPA and the Protection of Personal Information Act 4 of 2013 (“POPIA”).

Understanding opt-in and opt-out consent
To understand the legal landscape about direct marketing, the concepts of “opting-in” and “opting-out” must first be understood. Both concepts constitute a form of consent which may be exercised to either participate in direct marketing practices (opt-in) or to cease participation in such activities (opt-out). The primary difference between so-called “opt-in” and “opt-out” centers on whether the default position is that the consumer will receive marketing communications or not.

If the default position is that the consumer will receive marketing communications unless they engage in some form of positive conduct (rejection) to indicate that they do not wish to receive such communications, this will constitute opt-out consent. Opt-in consent on the other hand will be at hand in circumstances where the consumer needs to engage in some form of positive conduct (acceptance) in terms of which they elect to receive marketing communications.

Current consumer protection measures
According to the CPA, marketers may engage in direct marketing practices and can thus market directly to consumers until they elect to opt-out. In terms of the CPA, marketers are obliged to acknowledge that they have received opt-out instruction from a consumer. The CPA continues to regulate direct marketing by traditional means, while POPIA applies to direct marketing by electronic means.

The proposed amendments will, importantly for consumers, provide an opt-out registry as well as a pre-emptive block. The opt-out registry is proposed to be managed by the National Consumer Commission. The registration will include a form that must be completed which includes consumers giving their personal information to be placed on the list. If a consumer changes information, they will be responsible for updating the system to include their latest information.

Key features of the proposed amendments
This amendment will place an obligation on direct marketers to annually register on this opt-out registry and ensure that the information on this registry is updated when changes are made. Direct marketers will be prohibited from sending any services or goods to a consumer who has registered on the registry and direct marketers must cleanse their database monthly to ensure they do not contact consumers who are registered on the opt-out registry.

The pre-emptive block in turn will be made available for consumers who register on the opt-out registry. Therefore, consumers may now voluntarily place their name on the opt-out registry, which if done, will prevent businesses from contacting such consumers for direct marketing purposes. Simply stated, consumers now have the option of opting out before being contacted through direct marketing.

Data protection and consumer rights
The National Consumer Commission may only use the information provided by the consumers for the registry. The Commission is not allowed to give this information to any third party without the consent of the consumer, except where it is required by law to disclose such information. The amendment also requires the Commission to assist consumers with how this registry will work and how to use it.

It is therefore important for not only consumers to understand their new options and rights concerning direct marketing should these amendments be passed, but also for businesses who engage in these practices to understand their new obligations as well as the do’s and don’ts in this regard. 


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