Direct marketing companies are taking advantage of legislative loopholes to make unsolicited robocalls to consumers – and software tools like Truecaller offer the only reliable protection available.
Automated phone calls, or robocalls, are prerecorded voice messages that an automated dialling system plays to a user when they answer a call.
The Protection of Personal Information Act (Popia) aims to shield consumers from unwanted calls from marketers by prohibiting the “processing of personal information of a data subject for the purpose of direct marketing by means of any form of electronic communication, including automated calling machines”.
There are exceptions to this rule, such as if the person being called has previously given permission to be contacted or is already a customer of the calling party.
Robocalls, however, are increasing in volume as some unscrupulous businesses take advantage of loopholes in the legislation to make any number of automated voice calls to unsuspecting consumers – apparently without consequence.
“If the automated calls are for the purposes of direct marketing, then these will fall within the scope of Popia. The law is clear in terms of automated calls. Where the law needs strengthening is on the definition of electronic communication,” said Mukelani Dimba, executive for education and communication at the Information Regulator. “This appears to be a section of Popia that has opened itself up to multiple interpretations, thus perpetuating the current scourge of unsolicited marketing phone calls.”
Robocalls, and all other direct marketing calls for that matter, fail to meet Popia’s definition of “electronic communication” because they are not “stored in the network or the user’s terminal equipment until collected by the data subject”. This means that automated callers may legally communicate with a data subject in real time but cannot leave a voicemail message. The Information Regulator said it is looking at tightening legislation around robocalls to address this.
“Robocalls and their sources are a subject of an ongoing investigation and therefore we would not want to disclose more information on this matter in order to preserve the integrity of our investigation,” said Dimba.
So where does this leave the consumer? Section 11 of the Consumer Protection Act (CPA) also provides protection against unsolicited marketing. In terms of that act, consumers can go to a central registry and opt out of direct communications of various forms, including automated spam calls, from individual companies or entire sectors. If contacted by marketers after opting out through the registry, consumers can approach the National Consumer Commission (NCC) to seek redress. However, the registry is yet to be implemented.
“Consumers should hang tight as we build the central registry that will help protect them against unsolicited marketing,” said NCC spokeswoman Phetho Ntaba. “It is something in the pipeline and we don’t have timelines as yet.”
A regulatory framework that is not yet fully developed, coupled with the lack of a central registry from the NCC, leaves the consumer with little choice but to devise tactics of their own in the fight against robocalls.
Smartphone apps like Truecaller, which can identify calls and also act as spam blockers, are a great first line of defence. Some users that TechCentral has spoken to report responding to robocalls by answering the call and then placing their device out of earshot, allowing the bot to speak into the ether while the “spammer” gets charged for a wasted call. — (c) 2023 NewsCentral Media