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Lecture 5. Advertising & Marketing

Unsolicited Commercial Communications

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This lesson considers mainly the regulation of online advertising and marketing. It primarily focuses on the regulation of unsolicited Commercial Communications and concludes with a brief overview of the regulation of other aspects of marketing in a bid to ensure fair and responsible marketing. These other aspects include bait marketing, negative option marketing, loyalty programs and promotional offers.

The Electronic Communications and Transaction Act (ECTA) and the Consumer Protection Act (CPA) regulate unsolicited commercial communications and other marketing practices. These statutes are not directed at non-commercial or bulk communication and focus on commercial communication.

They are both applicable to all kinds of communications and are not limited to electronic communication as shown by the definitions quoted below.

  • Section 45(1) ECTA provides: “Any person who sends unsolicited commercial communications to consumers, must provide the consumer…” This definition does not refer to electronic communications; thereforeit applies to more than just email.
  • Section 1 CPA provides for the following definition of direct marketing: “to approach a person, either in person or by mail or electronic communication, for the direct or indirect purpose of—
    (a) promoting or offering to supply, in the ordinary course of business, any goods or services to the person; or

(b) requesting the person to make a donation of any kind for any reason”.

This definition expressly refers to approaches in person or by ordinary mail and therefore goes beyond electronic communication.

Forms of unsolicited commercial communications
Unsolicited commercial communications may be sent through a multiplicity of forms these include:

  • email (spam)
  • telephone
  • SMS or text message
  • Spim: spam based on MS instant Messenger
  • Spit: VoIP spam
  • Social networking tools: Facebook, Twitter
  • Mobile phone messaging services: Whatsapp, BBM

Recommended Reading

S Papadopoulos ‘unsolicited communications and direct marketing’ Cyberlaw@SA III pp 85 – 91
Lance Michalson ‘The Law vs the Scourge of Spam’ September 2008 available at

http://www.michalsons.co.za/the-law-vs-the-scourge-of-spam/1019 (accessed 4 August 2012)

Sebo Tladi ‘The regulation of unsolicited commercial communications (spam): is the opt-out mechanism effective?’ (2008) 125(1) South African Law Journal 178

Bonnie Tubbs ‘ISPA sued for defamation’ ITWeb, 19 June 2012 available at http://www.itweb.co.za/index.php?option=com_content&view=article&id=55959&A=EBU&S=Electronic (accessed 4 August 2012)