Promotional Competitions Tip #3: Click, enter, what to do with all the data?
Missed Parts 1 and 2? Click here to catch up
Well known by now in the South African market is the Protection of Personal Information Act 4 of 2013 (“POPIA”), which became effective on 1 July 2020 and changed the regulatory landscape in South Africa, impacting personal information collected through promotional competitions for the purpose of generating leads and collecting data.
A well drafted set of competition terms and conditions should, in the scenario of lead generation mechanics on social media, include provisions for: (i) obtaining consent from participants to use their personal information; (ii) inform participants why the promoter is collecting the personal information and the user generated content; and (iii) inform participants how to withdraw consent or request deletion of that personal information.
Important considerations here include that the promoter needs to be transparent about the purposes for which the personal information of the participants will be used, and that the information being requested is adequate, relevant, and not excessive for that particular purpose. For example, a promoter would be hard pressed to justify why asking the participant for their marital status is relevant in a promotional competition for garden furniture or concert tickets. On the other hand, asking for age if the competition prize is for alcoholic beverages (or where the promoter is a betting agency that is subject to regulatory requirements as we discussed in Part 1) would clearly be relevant.
Importantly, participants also need to be informed how their personal information will be used aside from entry into the competition (for example, future marketing purposes) and they need to consent to their personal information being used in this manner (for example, developing marketing strategies and conducting market research). Participants should also be offered the option to withdraw their consent or request that their personal information be updated and deleted through a clear and easy to use opt-out/request mechanism that the promoter makes available to all participants.
As mentioned in Part 1, the competition terms and conditions are critical for South African businesses to document these details and to ensure they are able to demonstrate compliance with the requirements of the CPA and POPIA, which could go a long way in ringfencing and limiting any legal liability that could potentially arise.