Legislation to protect people from unsolicited direct marketing is coming soon to an inbox near you, writes Robert Laing

An outright ban of spam is grinding its way through the legislature.

Under the existing rules - in Section 45 of the Electronic Communications and Transactions Act - unsolicited marketing e-mails are legal provided the sender does not use a bogus identity and offers an unsubscribe service, two rules very few spammers bother with.

The act's spam laws are to be replaced by those in the Protection of Personal Information Bill. Section 66 of the proposed legislation says companies may not carry out direct marketing "by means of automatic calling machines, facsimile machines, SMSes or electronic mail" unless very specific conditions are met: the communication must be with existing customers who have given their permission, and then only when selling something similar to what was originally bought.

The list does not include cold calling by humans, but other legislation - the Consumer Protection Act - limits the hours during which companies may phone.

Ever noticed how you get flooded with junk mail after handing in a business card to gain entry to a trade show?

Preeta Bhagattjee, law firm DLA Cliffe Dekker Hofmeyr's technology, media and telecommunications national practice head, said the Protection of Personal Information Bill would not outlaw the sale of marketing databases. Exhibition organisers and other businesses that do this, however, will have to comply with Principle 3: purpose specification.

This requires them to tell you up front that they are collecting your contact details for marketing purposes, and ask your permission before selling your details to third parties.

Clause 12 says: "Personal information must be collected for a specific, explicitly defined and lawful purpose related to a function or activity of the responsible party."

At the moment, people who do not want junk mail can request the Direct Marketing Association of South Africa to have its members remove them from their mailing lists. The association has an "Opt Out" button on its website, www.dmasa.org, to make this easy.

But a problem is that the association is a voluntary organisation, and only reputable companies tend to be members. There are currently no laws forcing companies to stop bugging you - something the Protection of Personal Information Bill proposes to address with the creation of a Personal Information Regulator. All companies involved in direct marketing will be obliged to register with the government regulator.

Bhagattjee said the South African bill was similar to laws which have been in place in the European Union for a decade.

The association said it asked the Department of Trade and Industry to make some changes to the first draft of the new laws, but was generally satisfied with the bill.

The bill also introduces laws requiring companies to keep secure the CVs it has gathered from prospective, current and past employees .

The proposed laws would bring many constraints to what data companies may gather and how they use it for marketing purposes.

Interestingly, the proposed laws say journalists should be exempted from the tighter rules on data gathering so they can do their job. This is one of the areas in which the Protection of Personal Information Bill contradicts the confusingly similarly named Protection of Information Bill, known as the anti-press bill.