Sending text messages for marketing can be an effective strategy, but each country has its own set of legal obligations. In the United States, marketers abide by rules under the Telephone Consumer Protection Act (TCPA), A2P 10DLC regulations, and CTIA guidelines. South African law features the Protection of Personal Information Act (POPIA), Consumer Protection Act (CPA), the Electronic Communications and Transactions Act (ECTA), and the Wireless Application Service Providers’ Association (WASPA) Code of Conduct. Failing to comply can lead to both monetary penalties and reputational harm. Below is a comprehensive guide to help businesses stay on the right side of the law in both regions.
1. Key US Regulations
Telephone Consumer Protection Act (TCPA)
- Consent Requirements: Businesses must have prior express written consent before sending promotional text messages.
- Disclaimers and Costs: Messages often include notes such as “Message and data rates may apply.”
- Opt-Out Mechanism: Provide a quick and easy unsubscribe path—typically “Reply STOP to opt out.”
- Penalties: Fines can quickly add up, with each noncompliant message risking legal consequences.
A2P 10DLC
- Definition: Formerly, person-to-person (P2P) long codes saw widespread use. Today, application-to-person (A2P) messaging often employs 10DLC to ensure carriers can identify legitimate marketing.
- Campaign Registration: US senders register and describe their campaigns for approval, leading to improved deliverability and compliance.
- Further Reading: For an in-depth look, see A2P 10DLC Campaign Registry Guide.
CTIA Guidelines
- Voluntary Standards: While not legally binding, carriers often expect compliance.
- STOP Confirmation: A user’s unsubscribe request should be immediately acknowledged.
State-Level Privacy Laws
- Additional Requirements: Some states layer extra privacy or consumer protection rules on top of federal law. Keep an eye on new developments to maintain compliance nationwide.
2. South African Regulations
South Africa enforces a combination of consumer protection, data privacy, and anti-spam rules that apply to SMS marketing.
2.1 Protection of Personal Information Act (POPIA)
- Data Privacy: Companies must collect personal data lawfully and purposefully.
- Consent and Transparency: Recipients must know what type of messages they’ll receive, why they’re getting them, and how to unsubscribe.
- Secure Storage: Consumer details must remain safeguarded and only kept as long as necessary.
2.2 Consumer Protection Act (CPA)
- Right to Refuse Marketing: Users can demand to be removed from marketing lists.
- Opt-Out Requirements: Every promotional text needs a clear, cost-free unsubscribe method.
2.3 Electronic Communications and Transactions Act (ECTA)
- Section 45 on Unsolicited Communications: Promotes rules for spam control, requiring that all commercial messages include an opt-out process.
- Cost-Free Unsubscribe: You cannot charge recipients to unsubscribe or request they jump through complicated hoops.
2.4 WASPA Code of Conduct
- Oversight and Enforcement: The Wireless Application Service Providers’ Association sets guidelines for mobile-based messaging in South Africa.
- Short Codes: WASPA often manages short codes (e.g., 3xxxx or 4xxxx), imposing stricter rules for consumer transparency, pricing details, and consent.
- Timely Opt-Out: As with the CPA, businesses must honor any STOP requests quickly.
3. Existing Relationships and Implied Consent
Laws in both the US and South Africa sometimes differentiate between new leads and existing customers. However, “implied consent” can be tricky:
- Existing Customer: May have provided a number during a purchase or account creation. Even so, best practice is to obtain explicit opt-in for promotional texts.
- Transactional Only: Businesses might assume they can send necessary account or shipping updates, but anything promotional or upsell-related requires explicit consent.
4. Short Codes vs. Long Codes
Companies sending SMS in South Africa frequently use short codes, regulated by WASPA. In the US, it’s common to register long codes through A2P 10DLC.
- Short Codes: Higher trust, often reserved for high-volume marketing. Expect rules around clear sender identity and message content.
- Long Codes: In the US, typically need to be A2P-compliant to sustain high deliverability and avoid carrier blocks.
5. Promotional vs. Transactional Texts
Promotional Messages
- Nature: Advertisements, deals, event reminders—anything meant to encourage a purchase.
- Consent Needs: Both POPIA (South Africa) and the TCPA (US) require explicit, prior permission.
Transactional Messages
- Nature: Account updates, shipment notifications, and appointment reminders.
- Not a Loophole: Adding marketing content can trigger promotional rules and require explicit consent.
6. Obtaining and Documenting Valid Consent
- Clear Language
Recipients should understand exactly what they’re opting in for and how frequently they might hear from you. - Double Opt-In
A two-step confirmation reduces complaints and ensures numbers were entered correctly. - Record-Keeping
Store dates, times, and methods of consent. If regulators investigate, you must demonstrate compliance. - Cost-Free Unsubscribe
Whether via short code or standard long code, unsubscribing must never incur hidden fees.
7. Examples of Enforcement
Local regulators and consumer bodies have penalized businesses that violated consent laws. For instance, in 2022, a South African business reportedly faced legal action under the CPA and ECTA for mass texting individuals who had never opted in. While monetary fines can be high, the greater damage can be to brand reputation and consumer trust.
8. Practical Compliance Tips
- Segment Lists: Maintain separate lists for promotional vs. transactional recipients, ensuring you don’t accidentally spam customers who haven’t opted in.
- Update Privacy Policies: Reflect changes in South African and US laws—like ECTA or CTIA guidelines—so customers see accurate information on data usage.
- Use Reliable Platforms: Dripcel can automate consent tracking, handle unsubscribe requests, and support region-specific best practices. For more on US-based compliance, see the U.S. SMS Compliance Guide.
- Regular Audits: Laws evolve. Schedule periodic internal reviews to confirm your processes remain current.
- Short Code vs. Long Code: Decide which best suits your campaign volume, budget, and regulatory environment.
9. Relevant Regulatory Bodies in South Africa
- Information Regulator: Oversees POPIA compliance.
- WASPA: Sets standards for mobile applications and short codes.
- ICASA (Independent Communications Authority of South Africa): Regulates certain telecom aspects.
- National Consumer Commission: Can enforce the CPA and address consumer complaints.
10. Final Thoughts
Messaging laws exist to protect consumer privacy and prevent spam. In the US, abiding by the TCPA, A2P 10DLC, and CTIA guidelines ensures fewer deliverability issues and legal risks. Meanwhile, South African regulations are shaped by POPIA, CPA, ECTA, and WASPA guidance. Marketers who respect these rules are more likely to build positive, long-lasting relationships with their audience—and avoid costly fines or public backlash.
For businesses seeking more in-depth understanding, check out Dripcel’s features at Dripcel.com. If you’re operating in the US, be sure to explore the A2P 10DLC Campaign Registry Guide for technical compliance insights. With a well-managed, transparent approach, SMS marketing can be a formidable tool—without the legal headaches.
