How will the CPA, the ECT and POPI impact on marketing research operations and the SAMRA Code of Conduct?
Issues relevant to marketing research 1. Protection of privacy – Children 2. Fit for purpose – Joint-liability 3. Industry codes
PROTECTION OF PRIVACY
There are many methods of gathering information including internet-based technologies and other interactive media. One of the most important methods of gathering information is by using market research, which depends for its success on public confidence. ICC/ESOMAR International Code On Market And Social Research
Electronic Communications and Transactions Act Information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message or is merely referred to in such data message.
Electronic Communications and Transactions Act A data controller must have the express written permission of the data subject for the collection, collation, processing or disclosure of any personal information on that data subject and must disclose in writing the specific purpose for which any personal information is being requested, collected, collated, processed or stored and the personal information may not be for any other purpose than the disclosed purpose.
Electronic Communications and Transactions Act A party controlling personal information may use that personal information to compile profiles for statistical purposes and may freely trade with such profiles and statistical data as long as the profiles or statistical data cannot be linked to any specific data subject by a third party.
Consumer Protection Act “direct marketing” means to approach a person, either in person or by mail or electronic communication, for the direct or indirect purpose of promoting or offering to supply, in the ordinary course of business, any goods or services to the person; or requesting the person to make a donation of any kind for any reason.
Market research , which includes social and opinion research, is the systematic gathering and interpretation of information about individuals or organisations using the statistical and analytical methods and techniques of the applied social sciences to gain insight or support decision making. The identity of respondents will not be revealed to the user of the information without explicit consent and no sales approach will be made to them as a direct result of their having provided information. ICC/ESOMAR International Code On Market And Social Research
The distinction between market research and commercial activities such as advertising, sales promotion, direct marketing and direct selling must be maintained. The essence of the distinction being that researchers have no interest in the personal identity of the respondents they question – they do not pass information about identified people to their research clients. Recent research developments in the area of customer satisfaction research or customer relationship management have thrown up some uncomfortable implications for researchers maintaining the distinction. It is increasingly common for these projects to have two purposes, the collection of representative sample survey data and provision to the client of details about individual respondents to allow follow-up, or product offers. When part of the intention in conducting a survey is to pass on identified data to the client to be used for marketing purposes, it must not be introduced to respondents as market research and it must follow the legal framework established for commercial activities such as direct marketing. Guide On Distinguishing Market Research From Other Data Collection Activities
Consumer Protection Act Right to restrict unwanted direct marketing The right of every person to privacy includes the right to refuse to accept; require another person to discontinue; or in the case of an approach other than in person, to pre-emptively block, any approach or communication to that person, if the approach or communication is primarily for the purpose of direct marketing.
Consumer Protection Act Right to restrict unwanted direct marketing A person who has been approached for the purpose of direct marketing may demand during or within a reasonable time after that communication that the person responsible for initiating the communication desist from initiating any further communication.
Consumer Protection Act Right to restrict unwanted direct marketing The Consumer Commission may establish, or recognise as authoritative, a registry in which any person may register a pre-emptive block, either generally or for specific purposes, against any communication that is primarily for the purpose of direct marketing.
Consumer Protection Act Right to restrict unwanted direct marketing A person authorising, directing or conducting any direct marketing must implement appropriate procedures to facilitate the receipt of demands to desist from initiating any further communication; and must not direct or deliver any communication to a person who has made such a demand; or registered a pre-emptive block.
Consumer Protection Act Operation of a registry to pre-emptively block direct marketing communication A consumer may register - his or her name, identification number, passport number, telephone number, facsimile number, e-mail address, postal address, physical address, a website uniform resource locator (URL); other global address for any website or web application or site on the World Wide Web; a pre-emptive block for any time of the day or any day of the year; or a comprehensive prohibition for any medium, address or time whatsoever.
Consumer Protection Act Operation of a registry to pre-emptively block direct marketing communication A direct marketer must without exception assume that a comprehensive pre-emptive block has been registered by a consumer unless the administrator of the register has in writing confirmed to the contrary. Every direct marketer must register with the administrator of the registry, and must annually on the date of registration in writing confirm the correctness of the registration details. For purposes of consumers under the age of 18 years, only his or her parent or legal guardian may act on his or her behalf, despite that consumer’s requests or approvals given to a direct marketer.
Protection of Personal Information Bill Personal information may only be processed if the data subject consents to the processing. A data subject may object, at any time, on reasonable grounds relating to his, her or its particular situation, in the prescribed manner , to the processing of personal information. If a data subject has objected to the processing of personal information, the responsible party may no longer process the personal information.
Protection of Personal Information Bill Personal information must be collected directly from the data subject, unless the information is contained in a public record or has deliberately been made public by the data subject; the data subject has consented to the collection of the information from another source; collection of the information from another source would not prejudice a legitimate interest of the data subject.
Protection of Personal Information Bill Personal information must be collected for a specific , explicitly defined and lawful purpose related to a function or activity of the responsible party.
Protection of Personal Information Bill Unless specifically permitted, a responsible party may not process personal information concerning a child who is subject to parental control in terms of the law; or a data subject’s religious or philosophical beliefs, race or ethnic origin, trade union membership, political opinions, health, sexual life or criminal behaviour .
Protection of Personal Information Bill The processing of personal information of a data subject for the purpose of direct marketing by means of automatic calling machines, facsimile machines, SMSs or electronic mail is prohibited unless the data subject has given his, her or its consent to the processing; or is a customer of the responsible party – if the responsible party has obtained the contact details of the data subject in the context of the sale of a product or service; – for the purpose of direct marketing of the responsible party’s own similar products or services ; and – if the data subject has been given a reasonable opportunity to object , free of charge and in a manner free of unnecessary formality , to such use of his, her or its electronic details — » at the time when the information was collected ; and » on the occasion of each communication with the data subject for the purpose of marketing if the data subject has not initially refused such use.
FIT FOR PURPOSE
Survey data submitted as documentary evidence shall conform to the following: The survey shall emanate from an entity approved by, or acceptable to SAMRA, and the accuracy of the claims based on the survey shall be confirmed by an entity approved by, or acceptable to, SAMRA. Where the survey does not meet the above requirements, such survey shall be evaluated by SAMRA to confirm the accuracy of the claims based on the survey. ASA Code of Advertising Practice
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