After a fresh complaint by the South African Internet Service Providers’ Association (ISPA) to the Independent Communications Authority of South Africa (ICASA) about the use of mobile numbers for calls from contact centres, and long held plans for a national opt-out register and restrictions on cold calling are close to implementation.
In the context of the wider international market, national do not call lists are common place around the world. Legally enforced in the UK, across Europe and the US since 2003 some may say South Africa is behind the curve on implementing a national DNC list.
It should be noted however that under the Protection of Personal Information Act (POPIA), you are already legally required to obtain consent before marketing to consumers through digital means (calls included) unless they are an existing customer.
What Section 69 (2) of POPIA provides currently is the ability to make a single call to a customer asking for consent to make further communications. Presumably a national DNC list would prevent that initial call too. After a consultation last year, The South African Department of Trade, Industry and Competition (DTIC) will no doubt provide further guidance in due course with an implementation date expected over the next twelve months.
In regards to using mobile number Caller Line Identification (CLI) many countries already explicitly ban the practice – for example Spain has implemented a ban on using Mobile CLI for both marketing and customer service calls from June.
What does the law say? South Africa’s Numbering Plan Regulations states that number allocations must be used for the purpose specified in the application and within the designated range for use. Most numbers in the ranges 05x, 06x, 07x and 081/2/3/4 are designated “Mobile services”.
Mobile service is defined in the Regulations to refer to the meaning provided by the National Radio Frequency Plan. The Plan defines mobile service as “A radiocommunication service between mobile and land stations, or between mobile stations (CV)”.
Does a call from a contact centre to a mobile phone device count as a call between a land station (defined as “A station in the mobile service not intended to be used while in motion”) and a mobile station (“A station in the mobile service intended to be used while in motion or during halts at unspecified points.”)? That’s certainly a question for ICASA to investigate and provide clarity on. It may also explain why the largest mobile operators in the country are allowing the practice – perhaps their lawyers don’t believe the activity is as clear cut as the ISPA believes.
Who would be liable for any penalties? The Numbering Plan states a fine of between R300,000 and R3,000,000 per infringement against the licensee. The licensee being the company that applied for the number range – i.e. the mobile networks themselves. For mobile networks that have allocated tens of thousands of Mobile CLIs – what would happen if ICASA took a hard stance here? And if ICASA deemed the current use incompatible with the law, how long a transition period would they permit for end customers to migrate service?
Whatever the law says today though, laws can easily be changed (see Europe) and the writing has been on the wall for a long time about the success of telemarketing. It’s never been more important for businesses relying on telemarketing to expand their marketing across channels. Contact rates continue to decrease every year with the likes of TruCaller and AI filters and regulations will keep tighting. For example another common practice of many telemarkets of number cycling has long been banned in the UK.
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