September 21, 2009
South Africans: it’s legal to add people to your newsletters without their permission
Turns out it’s legal to spam people if you’re South African.
The Electronic Communications and Transactions Act, 2002 of South Africa states that
1) Any person who sends unsolicited commercial communications to consumers, must provide the consumer
a) with the option to cancel his or her subscription to the mailing list of that person; andb) with the identifying particulars of the source from which that person obtained the consumer’s personal information, on request of the consumer.
2) No agreement is concluded where a consumer has failed to respond to an unsolicited communication.
3) Any person who fails to comply with or contravenes subsection (1) is guilty of an offence and liable, on conviction, to the penalties prescribed in section 89(1).
4) Any person who sends unsolicited commercial communications to a person who has advised the sender that such communications are unwelcome, is guilty of an offence and liable, on conviction, to the penalties prescribed in section 89(1).
What this means is that anyone can collect your data, sell it to a third party who subscribes you to their newsletter, and sends you unsolicited email, and it’s all quite legal.
At least in the States it’s double-opt (meaning you have to visit a website, enter your email address, click “subscribe” – that’s the first opt-in. Then check your email and click on a link to confirm you want to be subscribed – that’s the second opt-in). This means that any time someone adds you to their newsletter without your explicit permission, they’re spamming you. This is the correct way of doing it.
Which leaves me in a pickle. South African law governs the emails I receive, and spammers are not in contravention of the law. I don’t know which law applies when South Africans start spamming Americans (the mail recipient, or the sender?), but wouldn’t it be wonderful if South Africa changed her laws about unsolicited emails? Both privacy.org and wikipedia define spam as “unsolicited commercial email.”
I wonder if I should keep on posting about South African spammers given they’re not actually breaking the law, but are still spamming. What do you think?
[Update: people can get burned by this, like Justin Hartman from Afrigator. Always ask the people you're emailing if they'd like to be added to your newsletter - don't automatically subscribe them, even if you're convinced everyone wants your newsletter. The few who don't might get you shut down.]
[Update: turns out I misunderstood Justin – he wasn’t shut down by Mailchimp (his newsletter service provider) because of complaints. He says, “According to Mailchimp our email lists were actually very healthy (i.e. not many complaints) but we just decided it wasn
Comments(11)
Roger Saner is a web platform developer (using 
I haven’t had a chance to research this issue properly so I can’t comment authoritatively. That being said I think that collecting email addresses and using them for a purpose their owners haven’t consented to is probably a privacy violation. What often happens is that you inadvertently consent to receive promotional stuff from your provider and its partners when you apply for some or other service. That gets around the privacy issue.
When it comes to receiving email spam, it is an opt-out system so it is up to recipients to opt-out (and for senders to include links or a working opt-out mechanism).
Despite all of this, spammers don’t really give a hoot about the law so this stuff is largely academic as far as they are concerned. Good reason to have good spam filters.
@Paul: I really don’t like that spam is an opt-out system, because asking to opt-out also confirms to the spammer that my email address is valid. In my opinion, ALL newsletters should be opt-in, but according to the Electronic Communications and Transactions Act, 2002, they don’t.
Point taken about spammers not caring about the law, but what about genuine marketers who need to email people? Is it still spam if they add you to their newsletter without your consent?
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