INTRODUCTION
In the digital age, where consumer transactions are increasingly conducted over the phone and online, a glaring gap in consumer protection legislation has emerged, leaving individuals vulnerable to unjust practices at the hands of companies. This loophole lies in the lack of clear provisions regarding the rights of consumers to access recordings of telephonic agreements, especially in cases of unsolicited marketing calls. Unlike face-to-face transactions where consumers can rely on Section 50(1) of the Consumer Protection Act to receive a copy of any written agreements from the supplier for their records, telephonic agreements often leave consumers in the dark, without tangible evidence of their consent or understanding of the terms.
This blog will explore some of the very limited and complicated rights that consumers have with regards to accessing recordings of telephonic conversations between them and a supplier in terms of the Consumer Protection Act as well as the Protection of Personal Information Act.
BACKGROUND: A CASE ILLUSTRATED
We recently came across a consumer who wanted to cancel a contract she had with Vodacom as she prepared to emigrate. She called the company to cancel the contract, only to be informed of an unexpected cancellation penalty, because according to Vodacom she upgraded her package recently over a marketing call with one of the company’s sales representatives. Shocked by this discovery as she has no knowledge of upgrading her package, she requested access to the telephonic recording of the agreement made during the marketing call, hoping to clarify the terms to which she had allegedly agreed. To her dismay, the best she could get was that she was directed to visit a physical shop where she would be allowed to listen to the recording of the telephonic conversation, adding unnecessary inconvenience and exacerbating the power dynamics in favour of the supplier. On a practical level, if you’ve ever tried to transcribe a recorded conversation, you will know one needs to listen to the recording many times before being able to note it down accurately and we expect this opportunity was not afforded to the consumer. Vodacom cited privacy and security reasons for refusing to send her the voice recording, but of course only the consumer’s security and privacy were at stake in the situation.
CONSUMER PROTECTION ACT: DEFICIENCIES AND REMEDIAL MEASURES
Section 50(3) of the Consumer Protection Act (CPA) outlines the requirements for record-keeping in agreements between consumers and suppliers where the agreement is not in writing. Under this provision, suppliers are required to maintain records of transactions conducted over the telephone or any other recordable format “as prescribed” in the regulations to the CPA, which have no provisions on this aspect. However, while the CPA grants suppliers the right to retain such recordings, it notably fails to explicitly afford consumers the right to access these recordings or impose an obligation on suppliers to provide consumers with the recordings within a reasonable timeframe, similar to section 50(1) in as far as it pertains to written agreements.
This gap in the regulatory framework undermines the principles of transparency and accountability that underpin the aims of the Consumer Protection Act.
Our firm is preparing a submission to the SA Law Reform Commission to ask that this lacuna which perpetuates the unequal balance of power that exists in the favour of suppliers be filled by way of an amendment to the CPA.
LIMITED RIGHTS OF CONSUMERS TO ACCESS RECORDINGS
While the Consumer Protection Act may lack explicit provisions granting consumers the right to access telephonic recordings of conversations with suppliers, in terms of Section 102(1)(b) the National Consumer Commission may at any time during an investigation issue a Summons to any person who is believed to be in possession of any document or recording that has a bearing on the investigation to deliver it to them. So, if a consumer lodges a complaint with the National Consumer Commission, if they investigate it, they have an avenue to order the supplier to produce the recording of any relevant conversation with the consumer. This unfortunately happens quite late in the process from the consumer’s perspective.
Consumers can also turn to Section 33(3) of the CPA which is applicable where agreements are telephonically concluded and initiated by the consumer. Under this provision, suppliers are obliged to disclose certain vital information to consumers IN AN APPROPRIATE MANNER, including the supplier’s name, address, and most importantly, a sales record as stipulated in Section 26. This sales record must include crucial details such as the agreement’s date, the goods or services’ names and prices, among other important information.
The objective of the sales record outlined in Section 26 is to empower consumers to verify key aspects of the agreement, such as pricing and taxes, thereby promoting transparency and accountability. Given that crucial details relating to the transaction such as prices, nature of goods and services as well as delivery timelines are discussed during the telephonic conversation, it would be fitting and align with the overarching aims of Sections 26 and 33(3) of the CPA for suppliers to provide consumers with this sales record in the form of an audio recording of the telephonic conversation that concluded the agreement.
Consumers also have recourse in terms of the Protection of Personal Information Act (POPIA) which provides consumers with the right to request access to personal information held by suppliers. Section 23(1)(b) of POPIA entitles the consumer to obtain records of his or her personal information. Given that telephonic conversations with suppliers often involve the confirmation of personal details, such as identity numbers, addresses, and marital status, the recordings of these conversations inherently constitute records of personal information about the consumer. The supplier may charge a fee for providing access to the recording in compliance with POPIA regulations.
CONCLUSION
In conclusion, consumers have the right to be provided with recordings of telephonic conversations between them and suppliers in cases where agreements were concluded over the phone.
In a situation where you concluded an agreement with a supplier telephonically and said supplier refuses to send you the recording, we recommend the following:
- Formal Written Request: Submit a formal written request to the supplier, clearly outlining your request for access to the recording of the telephonic conversation in question. Ensure that the request includes relevant details such as the date and time of the conversation (if you still remember), the purpose of the call, and any specific information discussed.
- 2. Cite Applicable Laws: Indicate that you have a right to the recording in terms of section 33 of the Consumer Protection Act and section 23(1)(b) of the Protection of Personal Information Act, in your written request.
- File a Formal Complaint: If you don’t receive the recording in response, file a formal complaint with the National Consumer Commission and the Information Regulator. Contact details for the Commission: 012 428 7000 and enquiries@thencc.org.za, file a complaint on their website at https://thencc.org.za/complaints/. The National Consumer Commission has the authority to order the supplier to produce the recording of the telephonic conversation. Contact details for the Regulator: 010 023 5200 helpdesk@inforegulator.org.za. You can also find them on Facebook, TikTok, X, YouTube and LinkedIn.
For expert legal guidance and support in navigating consumer rights issues, visit our website or contact us at +27 21 422 0269 or email us at admin@broekmann.co.za.