Direct Marketing And Privacy

In today’s digital world, personal data has become a valuable resource for businesses. One of the principal uses of personal data collected by businesses is direct marketing. Many businesses have adopted direct marketing as a key strategy for promoting their business activities and services. The widespread use of direct marketing has also increased unsolicited communications, raising concerns about consumer privacy. This brief outlines the law on direct marketing and unsolicited communications, the obligations on businesses and the rights of consumers. 

What is Direct Marketing

Direct marketing refers to advertising or marketing material sent directly to particular inpiduals¹ through emails, text messages (SMS), telephone calls, or automated calling systems.² Unsolicited communications are direct marketing communications sent without the recipient’s prior consent.

Legal Framework for Direct Marketing and Unsolicited Communication

Under Ghanaian law, no business or inpidual may send direct marketing messages without the prior written consent of the consumer.³ If a consumer receives such messages, the consumer has the right to ask the sender to stop at any time.⁴ The consumer may also ask the sender to disclose where they obtained the consumer’s personal information.⁵ Any marketing message must clearly identify who is sending it and provide an address where the consumer can request them to stop.⁶ Sending unsolicited marketing messages, or continuing to send messages after the consumer has asked the sender to stop, is an offence punishable by a fine of not more than GHS 60,000, imprisonment for up to 10 years, or both.⁷ Consumers may also report violations to the Data Protection Commission, which has the power to order businesses to stop processing a person’s data.⁸

Not all communications from service providers require the consumer’s prior consent. Communications relating to the services provided to the customer⁹ such as billing information, payment receipts, tariff changes, or network disruptions, do not require prior consent. However, promotional messages, including advertisements for the provider’s own products or third-party promotions, require the consumer’s prior consent.

Direct Marketing in Practice

To ensure legal compliance and protect their rights, businesses and consumers should take the following steps:

• Businesses must obtain the consumer’s prior consent before sending direct marketing messages, clearly identify the sender, provide an address where consumers can request them to stop, and immediately cease communications upon receiving a stop notice.
• Businesses must provide simple and accessible opt-out mechanisms and must not pre-tick marketing consent boxes or marketing-related cookie options.
• Consumers should carefully review all privacy and cookie options, opt out of any pre-ticked marketing boxes, and send a stop notice in response to any unsolicited marketing communication.
• Consumers may request businesses to disclose how their personal information was obtained and should report any violations to the Data Protection Commission, which has the power to order businesses to stop processing personal data.

Footnotes

1. Data Protection Act, 2012 (Act 992), section 40 (4)

2. Electronic Communication Regulations, 2011 (LI 1991), regulation 32 (1)

3. Data Protection Act, 2012 (Act 992), section 40 (1); Electronic Transactions Act, 2008 (Act 772), section 50 (1); Electronic Communication Regulations, 2011 (LI 1991), regulation 32

4. Data Protection Act, 2012 (Act 992), section 40 (2); Electronic Transactions Act, 2008 (Act 772), section 50 (2) (a); Electronic Communication Regulations, 2011 (LI 1991), regulation 32 (1)

5. Electronic Transactions Act, 2008 (Act 772), section 50 (2) (b)

6. Electronic Communication Regulations, 2011 (LI 1991), regulation 32 (2)

7. Electronic Transactions Act, 2008 (Act 772), section 50 (4) (5)

8. Data Protection Act, 2012 (Act 992), section 40 (3)

9. Electronic Transactions Act, 2008 (Act 772), section 50 (1)