by Simone Scott

The amended ECT Act

Know your rights as a business

The amended ECT Act is forcing businesses to be aware of their spamming tactics
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There has been much debate recently in business circles about the 2012 amendments that were made to the Electronic Communications and Transactions Act of 2002 (ECT Act). The new amendments stipulate more severe forms of penalty to be meted out for violations of the act, indicating that the South African government is adopting a more serious approach to these types of offences.

These amendments align the ECT Act with current trends in legislation, such as the Consumer Protection Act of 2011 and the Protection of Personal Information Act of 2013.

While the intended purpose of the act has always been to prevent the abuse of information systems, with these amendments the government appears to have reconsidered how to better achieve this goal.

In the past, the act required a business to provide the consumer with a way to 'opt out' of receiving emails whereas the amended act now dictates that businesses can only ‘spam’ consumers that have 'opted in' to receiving information about their business. What this means on a practical level is that businesses are no longer allowed to send unsolicited emails to individuals in order to market themselves and their products.

Should the sct be violated, it can result in a hefty fine of up to R1 million or up to 12 months' imprisonment.

According to Sybaweb, an award-winning managed services and Internet provider, the amended act should only really affect businesses that already act outside, or on the outskirts, of the law. The company welcomes the initiative from government to discourage abuse of the Internet space by habitual email polluters who interfere with good business practice over the net and often cause damaging network overload.  

Patrick Turner, branch manager at Sybaweb’s Gauteng and KwaZulu-Natal branches, believes it is vital that businesses know their rights in relation to all legal issues. “It is vital for a business to keep up to date on IT (information technology) and communication law, and having the right IT partner on board to inform you of current developments is one way of keeping on top of it.

"If businesses know their rights, they can ensure they exercise these rights both to the benefit of their business and their clients.

"As far as the ECT Act’s new regulations on spam go, it has become clear that sending unsolicited bulk emails to consumers is a punishable offence. While there is some debate on the legal definition of what constitutes 'unsolicited' and various other aspects of the legislation, which may take time to be clarified, we strongly recommend that you protect your business by staying on the right side of the law. We suggest that businesses find other creative ways in which to get consumers to actually opt in to receive news about their company and its special offers.

"Many businesses make responsible use of social media platforms, and your IT specialist can assist you with enhancing your presence on the web. This will keep you on the right side of the law while still ensuring you raise awareness of your business in the public eye,” he adds. 

The amended ECT Act still requires businesses to provide the details of where they obtained the consumers' contact details, should this information be requested from them. It also stipulates that once a consumer has opted out from receiving information, the business is not allowed to contact that specific consumer again.

The newly increased fines should be a timely warning that it would be best for businesses to reconsider their current spamming practices. 

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