Direct Marketing - A National Opt-Out System and the Effect on B2B Marketing

Nicolene Schoeman-Louw | SchoemanLaw Inc

Category: Commercial Law | Technology Law

The Consumer Protection Act Amendment Regulations, 2026 (the “Amendment Regulations”) introduces a structured, centrally administered process for the regulation of direct marketing in South Africa.

The amendment gives operational effect to the statutory opt-out right contemplated under the Consumer Protection Act 68 of 2008 by establishing a National Consumer Commission (“NCC”) administered opt-out registry, imposing mandatory registration obligations on direct marketers, and requiring periodic “cleansing” of marketing databases against the registry.

In substance, the Amendment Regulations shifts anti-spam compliance from a decentralised, consent-based model to a centralised, registry-driven compliance model.

From a practical perspective, direct marketers are required to register with the NCC opt-out registry as a precondition to engaging in direct marketing activities.

Registration must be renewed annually, and marketers are obliged to ensure that their marketing databases are regularly cleansed against the opt-out register, typically on a monthly basis.

The regulatory intent is to ensure that consumers who have exercised a pre-emptive block are effectively removed from all compliant marketing channels, thereby embedding opt-out status into operational data governance rather than treating it as ad hoc unsubscribe events at market level between marketers and consumers.

A further material aspect is the requirement that all direct marketing communications must be transparent in identifying the marketer, including contact details and physical or electronic identifiers.

This removes the ability to conduct anonymous or obscured outbound marketing and strengthens traceability for enforcement purposes.

The combined effect is a model that is both procedural (registration and renewal obligations) and operational (ongoing cleansing and communication disclosure requirements) but ultimately driven by compliance from both the marketing and consumer side.

Impact On Business To Business (B2B) Marketing

A significate aspect relating to the Amendment Regulations concerns their application to business-to-business (“B2B”) marketing and, specifically, the question may come to mind as to whether large juristic persons fall within the protection of the new opt-out system.

Generally, the CPA provides protection to consumers on the basis that large juristic persons are largely excluded from the Act’s protection in terms of section 5(2)(b), read with section 6, where the juristic person’s asset value or annual turnover equals or exceeds the prescribed threshold, currently R2 million.

However, the structure, wording, and provisions of the CPA suggest that the position differs materially in relation to direct marketing to “consumers”, as defined in the CPA.

The CPA applies to “transactions” involving the supply of goods or services, subject to the exclusions contained in section 5(2), including the exclusion applicable to larger juristic persons.

Section 11 of the CPA applies to the “direct marketing” of goods or services, or of the supplier itself.

Importantly, direct marketing constitutes promotional conduct rather than necessarily forming part of a completed transaction.

This distinction becomes increasingly important when regard is had to the statutory definition of “consumer” which the CPA defines as follows:

“‘consumer’, in respect of any particular goods or services, means—

(a) a person to whom those particular goods or services are marketed in the ordinary course of the supplier’s business;

(b) a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business, unless the transaction is exempt from the application of this Act by section 5(2) or in terms of section 5(3);

(c) if the context so requires or permits, a user of those particular goods or a recipient or beneficiary of those particular service irrespective of whether that user, recipient or beneficiary was a party to a transaction concerning the supply of those particular goods or services; and

(d) a franchisee in terms of a franchise agreement, to the extent applicable in terms of section 5(6)(b) to (e);”

Importantly the definition of “consumers” clarifies that juristic persons (above the thresholds) are not protected as “consumers” under the CPA in relation to “transactions”.

This distinction is critical because section 5(2)(b) excludes larger juristic persons from protection primarily in relation to “transactions”.

However, the section 5 exclusions are not included in the definition of “consumer” in relation to marketing under paragraph (a) of the definition.

Direct marketing, ordinarily precedes any agreement or supply and instead constitutes promotional activity aimed at soliciting or encouraging a future transaction.

The direct marketing provisions, however, are rooted not in transactional protection, but in section 11 of the CPA relating to persons rights to restrict unwanted direct marketing.

Section 11 of the CPA grants every “person” the right to refuse, require discontinuation of, or pre-emptively block direct marketing communications.

The CPA defines “person” broadly to include juristic persons.

Significantly, section 11, as read with regulation 4 and the Amendment Regulations, refers to marketing in relation to “consumers” which the CPA defines as, inter alia, a person to whom those particular goods or services are marketed in the ordinary course of the supplier’s business.

Accordingly, the concept of “consumer” under the CPA assumes a broader meaning in the context of marketing than it does in relation to “transactions”.

The effect is that, although larger juristic persons may be excluded from certain transactional protections under the CPA, they nevertheless remain protected against unwanted direct marketing under section 11 and the Amendment Regulations.

The 2026 Amendment Regulations, which operationalise section 11 through the NCC-administered opt-out registry, therefore appear to apply to all juristic persons, including larger juristic persons engaging in B2B activities and exposed to B2B marketing.

The Practical Effect

The practical consequence for B2B marketers is that their “consumers”, including juristic persons, may register pre-emptive blocks on the NCC opt-out registry, requiring the direct marketers to refrain from contacting those consumers through regulated direct marketing channels.

Even B2B marketing directed only at corporate procurement teams, institutional clients, or business decision-makers will still fall within the operational obligations created by the Amendment Regulations.

Registration as a direct marketer with the NCC, periodic database cleansing, and the honouring of opt-out requests may therefore apply equally to B2B marketing activities, given that the legislative wording supports the position that promotional activities directed at juristic persons are not automatically excluded merely because the juristic person may ultimately fall outside the CPA’s transactional protections in relation to the underlying transaction.

Interaction With POPIA

The position is further complicated by the independent operation of the Protection of Personal Information Act 4 of 2013 (“POPIA”).

Section 69 of POPIA separately regulates electronic direct marketing and continues to apply irrespective of CPA classification.

Where personal information is processed in the course of direct marketing, POPIA obligations remain fully applicable, including requirements relating to lawful processing, transparency, consent in certain circumstances, and the inclusion of effective opt-out mechanisms.

Importantly, POPIA recognises both natural and juristic persons as data subjects in relevant contexts, further reinforcing the regulated nature of direct marketing activities even in a B2B context.

Conclusion

The 2026 Amendment Regulations do not fundamentally expand the scope of section 11 rights but aims to enforce those rights through a central registry and mandatory cleansing processes.

Because direct marketing is regulated as promotional activity (separate from transactions), the legal interpretation is that the opt-out system applies broadly and includes B2B marketing even when directed at juristic persons who are not protected under the CPA against transactions manifesting from such direct marketing.

While the practical and commercial effect of the Amendment Regulations remains to be seen, the takeaway for all B2B marketers would be to ensure compliance with the 2026 Amendment Regulations.

Nicolene Schoeman-Louw | SchoemanLaw Inc

Specialist Technology, Commercial and Contract Law

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