The word ‘donation’ is contained once within the Protection of Personal Information Act (POPIA). This will likely change the fundraising game for NPOs in South Africa.
Section 1 of POPIA defines ‘direct marketing’ and provides that it means, amongst other, to approach a data subject, either in person or by mail or electronic communication, for the direct or indirect purpose of requesting the data subject to make a donation of any kind for any reason.
Effectively, the solicitation of donations (fundraising) is now deemed ‘direct marketing’ under POPIA. This relates to unsolicited electronic communications.
What does it mean?
The processing of personal information of a potential donor (data subject) by means of unsolicited electronic communications for purposes soliciting donations is effectively outlawed – unless the NPO complies with the requirements pertaining to direct marketing (section 69).
Under section 69 of POPIA and its Regulations:
The data subject must give his, her or its written consent to the processing;
The NPO that wishes to process personal information of a data subject for the purpose of direct marketing by electronic communication must in terms of Regulation 6 submit a request for written consent;
The written request must be in the prescribed manner and form (Form 4);
The NPO can approach the data subject (who has not previously withheld such consent) only once in order to request the consent of that data subject;
The NPO may only process the personal information of a potential donor if he or she or it has been a ‘customer’ of the NPO, whose details have been: obtained in the context of a sale of a product or service; for the purpose of direct marketing of the NPO’s similar products or services and the potential donor has been given a reasonable opportunity to object to such use of his or her or its electronic details.
Non-compliance with section 69 constitutes an ‘interference’ and a data subject may, amongst other, submit a complaint to the Information Regulator with regards to such an interference.
Important Note: The information contained in this article is general in nature and should not be interpreted or relied upon as legal advice. The information may not be applicable to specific circumstances. Professional assistance should be obtained before acting on any of the information provided.
Ricardo Wyngaard is passionate about the non-profit sector and has been focusing on non-profit law since 1999. He is a lawyer by profession who has obtained his LLB degree at the University of the Western Cape in South Africa and his LLM degree at the University of Illinois in the USA. He has authored a number of articles and booklets on non-profit law and governance.
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