Does an advert which pops up on one’s Instagram profile constitute direct marketing?
It’s a very important question, because the Consumer Protection Act (CPA) gives consumers a handy “out” should they buy something or enter a contract as a result of being targeted by direct marketing — five business days in which to cancel for a full refund.
A Durban woman, who asked to be identified only as Trish, saw a Flight Centre advert on Instagram on October 19, and the next day booked and paid R7,536 for Durban-to-Bangkok return flights, departing on November 24.
Two days later she was consumed with buyer’s remorse and attempted to cancel the booking, but Flight Centre refused to do so.
“If it wasn’t for that ad which popped up while I was watching one of my friend’s videos — without any prompting from me — I wouldn’t have booked the flight,” Trish told me.
“Surely that makes it direct marketing?”
Not being familiar with the mechanics of Instagram, I approached Consumer Goods and Services ombud Magauta Mphahlele for her view.
She began by saying the issue was far from simple because the CPA was drafted at a time when social media was not prevalent.
“But an advert that pops up in one’s public feed would not, in my view, constitute direct marketing,” she said.
Direct marketing involves the approaching of a specific person through various direct channels, including SMS, e-mail and a face-to-face encounter initiated by the company, she said.
“An Instagram advert is similar to an advert popping up on my television screen,” the ombud said.
“I can choose to respond to it or not.
“If the advert was sent to her through her private direct messaging inbox, then we could argue that it is direct marketing, because that could be the equivalent of sending her an SMS or an e-mail.”
Cape Town-based attorney Trudie Broekmann, who specialises in the CPA, holds a different view.
“In my view the Instagram pop-up is patently direct marketing,” she said.
“The definition of direct marketing in the CPA is clear — it means to approach a person by electronic or other communication, for the purposes of promoting or offering to supply any goods or services to the person.
“So direct marketing is not limited to mail, e-mail or texting and can take place on any platform where electronic communication takes place.”
The ombud suggested that, since Trish bought those flight tickets online, the Electronic Communications and Transactions Act (ECTA) could help her, given that it gives consumers the right to cancel a deal, without penalty, within seven days of receipt of the goods.
But it wasn’t to be.
Responding on behalf of the Flight Centre Travel Group, customer experience director Kim Taylor asked for time for the group to get a legal opinion, and then came back to me to say that it was still a no.
“Social media marketing and specifically Instagram stories will create and serve content to a consumer based on the consumer’s activity and interests,” she began.
“Flight Centre at no point targeted [Trish] specifically and the Instagram story viewed by her cannot be viewed as direct marketing.
“And the Electronic Communications and Transactions Act doesn’t apply to transport, so the ‘cooling off period’ would not apply,” she said.
“[Trish] was fully aware that this booking would be non-refundable in the event of a cancellation before and after departure, and would have been requested to review the specific penalties for the booking prior to clicking on the ‘confirm’ button.”
On that point, had Trish booked those flights after being sent an advert via e-mail, the CPA’s direct marketing section would have trumped the travel companies’ “no refund” policies.
Trish must now decide if she wishes to proceed with the booking prior to departure to avoid being deemed as a “no-show” by the airline,” Taylor said.
“We regret that [Trish] is dissatisfied with our feedback and that there is, unfortunately, no refund forthcoming for this booking.”
She advised Trish to approach Emirates directly about the terms of the airline’s cancellation policy.
I took a look at ECTA and it is true that the cooling-off period for goods bought online does not apply to “the provision of accommodation, transport, catering or leisure services, where the supplier undertakes to provide the services on a specific date ...”
It also doesn’t apply to a few other online purchases, including books, magazines or newspapers, financial services, lottery tickets, and food and drink “intended for everyday consumption” delivered to a home or office.
So you don’t get to cancel the burger and fries you ordered from a delivery app if you’re no longer hungry when the meal is delivered.
But generally, the ECTA’s cooling-off period is a great perk to buying online — you get to change your mind about something you’ve ordered and paid for online, if you don’t fancy it, within a week of it being delivered.
With “bricks-and-mortar” purchases, you only have the legal right to a refund — in terms of the Consumer Protection Act, if the product becomes defective within six months of purchase.
This is something to bear in mind during next week’s Black Friday retail bonanza.