South Africa has a robust and strict regulatory environment for SMS messaging. Several laws provide a framework for the mobile messaging industry regulations, which define commercial electronic communications sent via SMS messaging and enforce consumer protection and the protection of personal data.
The Electronic Communications and Transactions Act, 2002 (ECTA) along with the Consumer Protection Act, 2008 (CPA) and the Protection of Personal Information Act, 2013 (POPIA) all regulate electronic marketing, including SMS messaging, defining how consent to receive direct marketing is obtained and how a consumer can opt-out from receiving marketing messages. POPIA requires an opt-in regime to receive SMS marketing. In addition, the Independent Communications Authority of South Africa (ICASA) has published regulations on premium rated services (PRS) in 2017, covering rules for the sending of an SMS message to long codes or shortcodes, where the charge is higher than the standard rate.
During the formative years of the mobile messaging industry in the country in the early 2000s, the mobile network providers saw the need to formalise industry best practice and comply with relevant legislation. This resulted in the formation of the Wireless Application Service Providers’ Association (WASPA) as a self-regulating industry body in 2004. Members of the association are wireless service providers (i.e. mobile messaging providers) operating in South Africa.
The WASPA Code of Conduct provides a binding set of rules that regulate SMS messaging in the country and applies to WASPA members and their clients. In particular, the WASPA Code of Conduct gives attention to the advertising and running of mobile services, especially SMS marketing and mobile content subscription services. WASPA handles consumer complaints lodged against service providers and their clients. Consumer complaints about SMS messaging can be lodged with WASPA online here.
Key requirements for SMS marketing:
An opt-in regime is required in South Africa, that is; in order to receive direct marketing communications via SMS, consumers must give prior, explicit consent to receive these messages or they are to be an existing customer of the sender, in which case they provided implicit consent to receive marketing messages. An organisation must retain proof of how and when a recipient gave consent to receive a marketing message as a consumer can request how their details were obtained. Alternatively, the organisation must have proof that the recipient has provided their contact details in the context of the sale of a product or service which is same as that being marketed. These consent rules also apply to non-profits engaged in SMS fundraising campaigns.
No Sender IDs are available in South Africa due to mobile network operator policies. Therefore, it is important for senders to identify their company, brand or non-profit organisation at the beginning of the body of the message. A contact telephone number or website address must also be included in the body of the message. It is also acceptable to use a URL shortener when sending links via SMS.
A STOP reply unsubscribe facility is available for SMS messaging in South Africa irrespective of whether the messages are marketing or transactional in nature. For marketing communications, consumers have the right not to receive direct marketing communications via SMS. To protect this right, a recipient of a marketing message must be able to opt-out from receiving further messages. This opt-out mechanism must include the ability to reply STOP via SMS, and this STOP request cannot be charged at an additional rate above the standard cost of processing an SMS message. There is an emerging industry best practice to enable a STOP request for marketing messages to be charged to the sender and not the recipient via a reverse billed number. This is a specific requirement for direct marketing messaging in the short-term insurance industry.
A STOP confirmation message must be sent to the consumer to confirm the opt-out. This message should include the name of your company and the following words: “You have opted out. You will not receive further marketing messages”. Records of opt-out communications need to be kept. A sender also needs to honour an opt-out request made via other channels, such as email or telephonically.
Promotional SMS competitions
SMS competitions can only be charged at R1.50 or less. This is a requirement set out in the Consumer Protection Act Regulations. There are specific rules for what information must be provided when advertising and running SMS competitions, including specifying a specific closing date as well as displaying and disclosing SMS pricing information in all the adverting mediums used for promoting the SMS competition.
Times when marketing messages can be sent
It is prohibited to send marketing message during these times in South Africa: on Sundays and South African public holidays; Saturdays before 09:00 and after 13:00; and all other days between 20:00 and 08:00 the following day. However, a consumer may give a sender permission to send marketing messages during these times
Do Not Contact List
In March 2020, the WASPA Do Not Contact List was implemented to enable consumer protection. It is available to consumers with a South African mobile number. The service allows consumers to register their mobile phone number on the WASPA DNC List to block their mobile number from receiving direct marketing messages sent via SMS. A consumer can also elect to unblock their number from the WASPA DNC List. WASPA members are required to check the WASPA DNC List on a weekly basis and block registered number from receiving direct marketing messages sent via its SMS platform by its clients.
Key requirements for premium rated services
Defining Premium Rated Service
Premium Rated Services (PRS) are those SMS services where the cost of the SMS to the consumer is charged at a higher rate than the standard rate. PRS are usually 5-digit shortcodes that are used for mobile content services, voting lines, promotional competition, or non-profit donation lines, among other uses. The Independent Communications Authority of South Africa’s (ICASA) regulations on the Code of Conduct for Premium Rated Services (2017) have been included in the WASPA Code of Conduct.
Terms and Conditions
The terms and conditions of the use of the PRS must appear on the provider’s website. This must include the registered name of the organisation, telephone, and email contact details of the organisation, how the service works, the per message cost of the service (the shortcode access cost), and any other details that are specific to the services (such as, the end date of an SMS competition or whether voting is limited or not).
The advertising of PRS must clearly describe the services offered as well as the name of the company or brand providing those services. PRS must not be intentionally targeted at children.
Where a consumer spends R200 or more on a specific PRS shortcode in the period of a month from the same mobile number, the provider of that SMS service must send the consumer a billing threshold notification of this fact. A billing threshold notification is then to be sent for every R200 spent thereafter. This rule applies specifically to SMS voting lines.
The provider of the PRS must ensure that telephonic support is available and, where possible, the telephone number is to be a toll-free number.
Subscription services must be advertised in the stipulated manner, indicating that it is a subscription service, as well as the cost of the service, and the frequency of billing. A consumer must double –opt-in to a subscription service and the opt-out mechanism for a subscription service cannot be a premium rated number.
If a complaint for a PRS is received by WASPA then the organisation is required to keep accurate records of the PRS complaint for 5 years
Links to regulations and further information
Relevant legislation and regulations:
- Electronic Communications and Transactions Act, 2002 (Act 25 of 2002)
- Consumer Protection Act, 2008 (Act 68 of 2008)
- Consumer Protection Act: Regulations, 2011 The Protection of Personal Information Act, 2013 (Act 4 of 2013)
- ICASA’s Regulations on the Code of Conduct for Premium Rated Services, 2017
Code of Conduct:
Disclaimer: The information contained in this note is for general guidance on regulatory compliance matters only. While we have made every attempt to ensure that the information contained here has been obtained from reliable sources, BulkSMS.com is not responsible for any errors or omissions, or for the results obtained from the use of this information. It shall be the sole responsibility of Users of BulkSMS.com’s services to familiarise themselves with all applicable laws, regulations and codes of conduct to which they may be subject and to ensure compliance with them.