In 1978, Gary Thuerk sent the world’s first unsolicited bulk commercial e-mail, now more neatly described as spam, to 400 US government contractors. The e-mail advertised his company’s new computer product and, according to the World Economic Forum, netted him about $13m in sales.
Nearly 50 years later, spam remains an annoyance to anyone with an e-mail address. Despite rapid advances in online communication e-mail is still an essential modern-day marketing tool.
“It’s a bit like receiving a letter in the mail. Unlike other digital marketing mediums, it’s long-form, and there’s no time requirement to reply,” says Andrew Childs, founder of digital solutions company Known Consulting.
“We’re used to dealing with and receiving an e-mail, reading through it and giving it a good amount of mental processing time. Sending it is a high-quality way of putting the ball back in someone’s court.”
The intrinsic value that personal contact details like e-mail addresses have and the way they have been exploited by various businesses led governments to introduce legislation that governs how and when companies can contact us — especially when trying to sell products. In South Africa, much of this protection falls under the Protection of Personal Information Act (Popia).
Truly rogue spam has barely evolved from its decades-old origins; it’s a blunt tool used by desperate organisations. But now legitimate companies that claim to be accountable in terms of Popia are finding other ways to sidle up to our inboxes in an equally frustrating fashion.
When buying an air ticket, for example, you understandably need to provide full contact details. Airlines are allowed under Popia to use these details to send you essential notices, such as boarding passes and information about flight changes. But many take this further by sending sales e-mails before you depart urging you to upgrade your seat or pay to take additional luggage on the flight. And the moment you turn your phone on upon landing, you may well receive an e-mail requesting you to complete a customer survey — for marketing purposes.
Mark Blanckenberg, director at Blanckenberg Law in Joburg, says this is probably something you consented to, perhaps unknowingly, when you bought the ticket.
“When you give your personal information, such as an e-mail address, to a company, there are likely terms and conditions that you’re agreeing to. Often, these contain Popi statements, and you may be consenting to receive ongoing or sporadic communication — or are possibly even allowing them to share your information with others,” says Blanckenberg.
This example falls into what lawyer Tayyibah Suliman, head of technology & communications at Cliffe Dekker Hofmeyr, says is a grey area.
“For existing customers [of a company], the legislation essentially says that a responsible party may send you direct communication or direct marketing if they’ve obtained your contact details. It’s subject to the context of a sale of a product and must be for direct marketing of similar products or a similar service. But the company must have given you the opportunity to opt out,” says Suliman.
You may be consenting to receive ongoing or sporadic communication — or are possibly even allowing them to share your information with others
— Mark Blanckenberg
It is more opaque under South African law whether the insurance company that sends you a monthly e-mail — ostensibly to confirm receipt of your premium payment but which also contains links to glowing blog posts and updates — falls within the context of the original reason you shared your e-mail address with it. The same goes for the car manufacturer reminding you it’s time for a service in an e-mail littered with adverts for its newest models.
“Some companies might argue that sending follow-up e-mails — say the [opportunity to pay for] extra luggage before a flight, or a post-trip customer survey — is not necessarily direct marketing as much as a service-orientated message in the context of the sale,” says Suliman.
“The company may say these are services for the convenience of the customer. And it probably is not too far off the mark to say that, because we often need reminders of these things and are marginally grateful when we receive them.”
The FM approached several companies using legitimately obtained contact details and so-called service e-mails as trojan horses for marketing messages, upsells and market research to understand their rationale and, perhaps more importantly, to inquire why they fail to provide opt-out features. All fell back on the above reasoning, with two companies saying that the only way to opt out of these e-mails is to provide an incorrect e-mail address.
Short of taking your business elsewhere or submitting a formal complaint to South Africa’s information regulator, there’s little option but to continue receiving seemingly legitimate spam.
Both Childs and Suliman advise clients that any nonessential e-mails that don’t have opt-out links contravene the applicable laws and are problematic — from both good business practice and legal perspectives.
Blanckenberg agrees. “Companies should, absolutely, allow you to opt out of the communication and remove your information from the database if you wish.”
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.