In the age of digital transformation, with marketing being conducted by social media influencers, the use of algorithms and the prevalence of emerging technologies, it is not far-fetched to conclude that the marketplace has been remodelled and is continually changing. The ordering and offering of goods and services online has become the order of the day.

Given the rapid transition from the traditional to digital marketplace – as well as the inherent power imbalances and other concerning factors such as choice manipulation practices that render consumers susceptible to exploitation and unfair commercial practices – one can only wonder if our law is up to date.

Have you ever experienced questionable commercial patterns and/or unfair commercial practices while shopping online? This includes finding it difficult to opt out or cancel an online subscription, reading a product review that seems too good to be true, or suddenly seeing certain products repeatedly appearing on your screen when using different online platforms. None of us want to be victims of exploitation and digital fraud when transacting online, yet, the truth is that our consumer protection law is not keeping pace with modern developments to combat some of these challenges effectively.

Since the Consumer Protection Act (CPA) 68 of 2008 came into force in 2011, it has not received adequate and vital updates to ensure that it is in line with ongoing changes in the marketplace. While technology is advancing at a fast pace, the legal framework on consumer protection in South Africa is still lagging, and has not adapted to challenges posed by digital markets and emerging technologies.

The CPA provides consumers with several rights, including the right to choose and the right to privacy. Moreover, it contains provisions regulating unfair commercial practices in the marketplace. The provisions of the CPA regarding consumer privacy, the right to choose and the regulation of unfair commercial practices need to be updated, taking into consideration developments brought by emerging technologies and digital transformation. This should be done to ensure that fairness and transparency, which are the hallmarks of consumer protection, remain intact and are upheld even in the digital environment. Despite changing dynamics in the marketplace, consumers must never be left unprotected, vulnerable and at the mercy of suppliers. 

The law-making process in South Africa is slow and a cause for concern. For instance, only in October 2024 did the Department of Trade, Industry and Competition publish draft amendments to the regulations of the CPA intending to implement an opt-out registry for direct marketing distributed by electronic communications. The opt-out registry was part of the CPA regulations, which were published in 2011 but have never been established almost 15 years later. The proposed changes, if adopted, would be a step in the right direction as they will empower consumers to block unwanted electronic direct marketing. Nonetheless, it remains to be seen if these proposed amendments to the CPA will eventually be implemented.

As things stand, the consumer protection regulatory framework in South Africa is not up to date and more should be done by the government and regulatory bodies to ensure the adequate regulation of consumer protection in the digital market. While it is encouraging to note the developments in consumer protection law framework, such as the recent proposed amendments to the CPA, there is an urgent need to balance technological innovation with an effective and robust legal framework to ensure adequate consumer protection. Having observed World Consumer Rights Day on 15 March, it is vital that emphasis is placed on ensuring a robust regulatory framework that can safeguard the interest of consumers in the digital market.