When initiating communication in direct marketing to a consumer a marketer ought to disclose its identity and a valid address to which the consumer can send a request to have the communication ceased . Transmission of communication in direct marketing is not permitted if the marketer has initiated an automated calling system without human intervention .
power characteristics of marketers or vulnerability indicators .
Personal characteristics may go as far as exploiting someone ’ s mental illness or age . The consumer in this instance is unable to protect herself from online messages nor realize the implication of this form of marketing which consists of aggressive communication , undue influence , deception that is fostered by predictive analytics and machine learning . A marketer ’ s role in manipulative marketing may be intentional or unintentional but remain accountable in both occurrences .
Profiling and predictions can tell a person ’ s location , movement , behavior , interests across different websites and devices all these made conceivable by use of advanced technology .
Automated processing including profiling can cause significant effects on a consumer such as affecting the circumstances , behavior or choices of the consumer ; have a prolonged or permanent impact on the consumer or cause the exclusion or discrimination of individuals . This removes freedom of choice .
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When initiating communication in direct marketing to a consumer a marketer ought to disclose its identity and a valid address to which the consumer can send a request to have the communication ceased . Transmission of communication in direct marketing is not permitted if the marketer has initiated an automated calling system without human intervention .
The elderly , children and those suffering from mental illness may not withstand illicit marketing which unpleasantly relies on processing of sensitive personal data . Profiling of a child is prohibited .
A marketer ’ s risk of infringing consumer privacy rights starts at the point of processing personal data . Marketing is at a high risk of infringing fundamental rights and freedoms of consumers when :
» Automated profiling analyses personality and causes significant effects on individuals .
» In large scale data processing of personal data .
» Systematic monitoring of a public accessible area .
Personal data and even non-personal data when processed without transparency with use of advanced analytical tools and target practices ultimately leads to predictive profiling , systemic monitoring of data subjects and target vulnerable groups .
A consumer ’ s least privacy expectation is certainly in the law and marketers can mitigate illicit marketing by :
( i ). Complying with provisions of the Data Protection Act No . 24 of 2019 .
( ii ). Investing in consumer knowledge for a more defined privacy expectation tailored to the marketer ’ s product which would lower the consumer privacy expectation and make it less demanding to fulfill for a marketer .
Principles of Data Protection
The Act provides that the Data Commissioner may carry out periodical audits of the processes and systems of a data controller and data processor to ensure compliance with the Act .
Marketers are expected to formulate appropriate organizational measures where the transmission of data is over an information and communication network . The technological development available , cost of implementing the security measures , nature of the data processed and the special risks accompanying the process are factors to be considered in developing an organizational measure .
Data must be collected and processed with the legal obligation of the marketer in mind . We should mention some of the principles listed at Section 25 of the Data Protection Act that guide marketers when processing personal data .
( 1 ). Lawfulness , fairness and transparency in processing data .
Consent is the most common element of a legal basis for processing data . It must be freely given , not conditional and unambiguous . An avenue that offers real choice to the consumer must be exercised and the consumer informed of her rights before giving consent .
Where the consumer is a child , the child ’ s guardian or parent must give the consent . A mechanism should be installed for age verification and consent before processing personal data . If consent is not asked the marketing is deemed illicit and privacyintrusive .
Online behavioral marketing is based on automated profiling , this can only be cured by an explicit consent .
Consumers must be informed of the use to which their personal data will be put , have the right to access their personal data that is in the possession of the marketer , object to the processing of all or part of their personal data or have the data collected directly
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