The mass of unsolicited SMSes sent by the ANC and the DA to potential voters as millions of South Africans got ready to vote exposed a loophole in SA's legislative framework.
Thousands of people received SMSes urging them to vote in yesterday's local government elections, and to vote for a particular party. The messages angered many voters and sparked a social networking debate over their legality.
The DA, in particular, came under fire for its campaign that saw SMSes still being sent yesterday morning. However, the messages, while an invasion of privacy, aren't technically illegal.
The major cause of upset stems from the lack of an “opt-out” mechanism in the messages, thought by many to be a violation of the Electronic Communications and Transactions (ECT) Act and the Consumer Protection Act (CPA).
However, lawyers argue that both these laws apply to commercial entities, leaving a grey area in SA's legislation that is open to abuse.
Technically OK
DA CEO Jonathan Moakes - in response to a barrage of complaints on Twitter - said: “It is not in violation of the CPA. SMS campaign perfectly legal. Call 0861225532 to be removed from SMS list.”
Paul Jacobson, of Jacobson Attorneys, explains Moakes may be correct that political messaging isn't subject to the same opt-out requirements as typical marketing messages.
Jacobson says the ECT Act deals with unsolicited commercial messages when it talks about the requirement for an opt-out mechanism. The CPA talks about direct marketing, which implies a commercial reason for the communication, he explains.
The CPA defines direct marketing as approaching someone either in person, by mail or electronically, to promote or offer to supply “in the ordinary course of business” goods or services, or to ask for donations of any kind.
Jacobson says there isn't a ready avenue for consumers to complain at the moment and the parties probably won't be held accountable.
Nicholas Hall, an attorney with Michalsons Attorneys, agrees that the messages aren't commercial, which rules out applying the ECT Act and the first section of the CPA. “So to my mind, these messages do not need to have the 'opt-out' provisions attached to them.”
Privacy issues
Yet, the debate around the SMSes not having an opt-out mechanism shouldn't be limited to technical legal aspects, says Jacobson. “Voters should be given the option not to receive messaging from political parties.”
The reasoning behind an opt-out mechanism is linked to a general right to privacy entrenched in the Bill of Rights in the Constitution, Jacobson adds.
DA leader Helen Zille justified the SMS campaign on Twitter: “In our campaign we do everything possible to contact voters. Door-to-door, phone canvas, post, SMS. It is make-or-break for our democracy.”
Zille also added through the social networking site: “We got the SMS data legally from commercial sources. Sorry for offending anyone. Future generations will be grateful that we did all we could.”
“By simply purchasing a database of people and messaging them like this, the DA may well have violated those recipients' right to privacy, particularly if they did not consent to their personal information being used in this manner,” argues Jacobson.
Hall says the more pressing issue is how the political parties acquired the list of names and numbers. He points out that there currently isn't any legislation, apart from the right to privacy enshrined in the Constitution, which protects people's privacy.
Hall says there aren't any laws that stop people or organisations from selling data lists. However, when the Protection of Personal Information (PPI) Bill comes into effect, it will regulate what can be done with citizens' information and make list-selling illegal, he notes.
PPI is making its way through the Parliamentary process and is expected to be enacted later this year.
Cross voters
The Direct Marketing Association of SA has received a “ton of complaints”, says CEO Brian Mdluli. He says the association is dealing with the issue and will engage both parties to get them to comply with the CPA.
Mdluli argues the CPA also applies to political parties and they shouldn't be allowed to find and exploit a loophole. “The consumer is also the electorate.”
The CPA sets time restrictions for when direct marketers can contact people, prohibiting late night contact, or messages on a public holiday, says Mdluli. Political parties should be leading by example and not flouting the curfews, he says. “Some SMSes came in at 11pm.”
Voters vented their anger on Twitter, labelling the intrusion “SMS gate” and lambasting the DA in particular for the barrage of unsolicited SMSes. Said one voter: “@helenzille Why was there no opt-out in SMS? Why do I need to tweet @Jonathan_Moakes? Who gives u the right? Future gens [generations] will hate 4intrusion!”
Another said: “@Jonathan_Moakes You could have handled this issue far better! Privacy is an issue for the Middle class #SMSGate”
Others saw the lighter side of the mass SMS campaigns, joking: “People complaining about receiving an SMS from the DA... Be grateful... I got a Please call me from the ANC.”
Some voters questioned whether the parties had violated the Independent Electoral Commission's rules that prohibit all political parties from campaigning on election day.
The IEC has, however, said in a statement that the campaign was legal as the Electoral Act only prohibits campaigning involving rallies, marches, demonstrations and events on election day. The commission also denied being responsible for providing cellphone numbers of voters to the political parties.
Neither the ANC nor the National Consumer Forum responded to requests for comment this morning.
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