By Andre de Villiers
Data Protection Officer for Devler Estates Constantiaberg Pty Ltd

(Presentation from Tuesday 4th May)

What you really need to know!

The Protection of Personal Information Act (POPI or POPIA) sets out ways in which businesses must deal with personal information that they hold on employees, customers and clients, whether individuals or entities. Their details must be safeguarded when the Act becomes enforceable in July 2021.

COLLECTION of personal information. Information may only be collected for the specific purpose of providing a service to a particular person. If personal information has been collected from another source, the agent must reveal the source of the information orally or in writing.

PRESERVATION of personal information. It is required that any personal information you hold must be protected from loss, damage or unauthorised destruction, and unlawful access – you will be expected to implement reasonable measures to ensure this protection is in place. You may not share client information with any third party such as other agents or take information with you to another company if the information is the property of Chas Everitt.

You need a record of how you obtained the data, why you collected or have it and what you do with it. The Act impacts substantially on direct marketing — especially through SMS and email channels. Up until 30 June 2020, most of this form of marketing has been on an ‘opt-out’ basis, in other words consumers receive promotional messaging and can choose to no longer receive these messages.

With POPI in force, direct marketing has become ‘opt-in’, where consumers will have to actively agree to receive promotional messaging.

Until now most unsolicited marketing has been on an ‘opt-out’ basis, in other words contacts receive promotional messaging can choose to no longer receive these messages.
As from 1st July 2021 unsolicited marketing via electronic channels * will only allowed where the contact has specifically ‘opted in’ or where the recipient is an existing customer and has already given their personal information for the purpose of direct marketing; or the consumer has been given a reasonable opportunity to object. (Fuller details below in Read More about the two scenarios…)

* Please note that leaflets, letters and postcards as well as one to one phone calls on listed numbers are not marketing via ‘electronic channels‘. *

It is thus up to our business systems as Chas Everitt to make the case that we have followed all these requirements as described above and if you have a database that you use independently (including TVA) you need to be sure you are doing the same.

If you want to read more on the above topic:

For direct marketing, an estate agency must then ascertain whether an opt-in consent must be obtained. There are two scenarios.
  • If this is a FIRST APPROACH  to the person, consent must be obtained for any unsolicited (ie, that person did not ask for it) marketing to that person. In other words, where an estate agency wants to contact a person for the first time with marketing communication which was not
    requested (unsolicited), the agency must obtain consent before sending electronic marketing to individuals. The agency may approach someone for direct marketing consent once only, and provided that they have not withheld consent previously.
    There is a form (Form 4) in the Regulations to POPIA that sets out an example of such a consent. Agencies may use it as is, or choose to adapt it and make it more attractive than the legislature’s attempt (whilst making sure the necessary information is contained therein so
    that the person knows at all times what marketing he is consenting to and from whom it will be received).
  • On the other hand, when it comes to contacting your EXISTING CLIENTS, there are three criteria that need to be met before you can start marketing to them directly:
    1. If the client’s contact information was obtained in the context of a rendering a service (such as assistance with a sale or lease of immovable property);
    2. If the agency wants to inform that client of similar offerings;
    3. If the client is given opportunities to refuse the direct marketing, both at the time the information is collected and every time marketing is directed to him/her. For example, if an agent has an existing relationship with a property investor in terms of
    which he or she shall find options in new developments for purposes of leasing, marketing new suitable developments to that client will generally be in order provided an opt-out option appears in each electronic marketing message.

Some Notes on Cold calling

Agents may still do cold calling though, as this is a personal (not electronic) way of direct marketing and therefore not prohibited by the provisions of POPIA. The recipient of the call may ask the agent to stop contacting him or her, and this must then be adhered to.

However, where the estate agent uses lists purchased from a lead generation business, the position is trickier, as the estate agent will have to obtain confirmation from the lists provider that the records have been obtained and stored in a way that is compliant with POPIA and that consent is in place. That is generally difficult, as this was not the practice in the past to record the additional detail or to obtain consent.
When obtaining these records, it will be advisable for the estate agency to obtain confirmation from the provider of the records (such as Lightstone) that the data provided has been obtained and recorded in a way that is POPIA compliant.

Estate agents may not without consent send unsolicited SMS’s or automated calls, as these are fall within the definition of direct marketing in POPIA.