Opting Out of Direct Marketing Messages via SMS - South Africa

In South Africa, there has been much media attention on the cost to consumers for opting out from messages they considered as unwanted marketing messages from brands. Specifically, there is talk that wireless application service providers - who provide the SMS messaging platform used to relay communications sent by a client to a mobile number - are not meeting the requirements of section 11(5) the Consumer Protection Act (CPA) (2008), which states that consumers cannot be charged when requesting to opt-out from direct marketing messages.

The main contention is that wireless application service providers charge consumers a fee for using the STOP reply mechanism – that is, the ability for a consumer to reply STOP on receiving an SMS message. However, the mobile messaging industry, in following the WASPA Code of Conduct set out by the industry body, WASPA, does adhere to the requirements of the CPA. As WASPA has stated in response to the media, no WASPA member may use a premium rated short code or number for opt-out replies as this would be considered a fee as they would derive a revenue share on the premium charge. The current industry practice is to use a standard rated short code or number, where no income is received, and therefore no fee is charged to a consumer by a wireless application service provider. What fees are charged to a consumer are done so by their network provider.

What is therefore not clear in this scenario is whether a standard rated charge, i.e. the network cost of handling an opt-out request via SMS, would constitute a fee under the current regulatory environment. WASPA has therefore recommended that to ensure certainty in the market, that this matter needs to be addressed with ICASA, which regulates the networks, so that all parties operate within the boundaries of the CPA and the WASPA Code of Conduct.

In short, continued best practice means a brand must adhere to WASPA’s Code of Conduct requiring that direct marketing messages sent using the SMS channel be opt-in messages (where consent has been given), and that for each direct marketing message sent it is clearly stated at the end of the message that a recipient can reply STOP to opt-out from these messages. These STOP replies will charged to a consumer at a standard rated charge but neither the wires application service provider, such as ourselves, or the brand, receives this “fee”.