Recent enforcement actions by the Office of the Data Protection Commissioner against businesses sending unsolicited marketing and promotional messages have sparked animated debate across Kenya’s SME ecosystem.
On one side are those who argue that the regulator is simply doing its job, upholding the law and protecting consumer rights. On the other hand, some businesses argue that they are misunderstood, asserting that consent is implicitly granted during routine mobile money transactions and that the backlash is disproportionate.
This tension is understandable. But it risks obscuring the more important reality that compliance is the gateway to a more sustainable, trusted, and effective digital marketing ecosystem.
I agree with the regulator’s position that payment interactions do not constitute “express, unequivocal, free, specific and informed” consent, and this is supported by how people actually behave and expect.
When a consumer is settling a bill, buying airtime, or completing any transaction, their cognitive focus is on the fulfilment, not future marketing engagement. Treating this moment as implicit permission for ongoing promotional messaging is wrong.
Global privacy norms have long drawn a clear boundary between the two, and Kenya is aligning with that direction. Importantly, this clarity benefits businesses in the long run. Ambiguous consent creates legal risk, customer resentment, and inconsistent enforcement.
While regulatory fines can be severe enough to cripple small businesses, they are only the visible tip of the issue. Less discussed but equally damaging are blacklisting by mobile operators or aggregators, suspension by payment service providers, reputational damage, and loss of trust that depresses repeat business. Unstructured, consent-light marketing practices do not scale and present a high risk to the business.
The reality is that first-party data, particularly payment data, remains one of the most valuable assets a business can hold, provided it is used correctly. The shift required is insight-based engagement.
Payment data can inform: product affinity trends, timing and seasonality patterns, customer value segments, and demand forecasting, all without directly messaging individuals or exposing personal identifiers.
Aggregation, pseudonymisation, and minimisation are the design principles. Consider a local supermarket. The compliance-heavy ‘old way’ involves using phone numbers from mobile money transactions to blast a generic ‘Fresh Bread’ SMS to their entire base, most of whom are not currently hungry.
The privacy-first approach looks different. By analysing basket value data, they realise that 60 percent of Friday evening customers also buy milk. Instead of spamming, they run a geo-targeted ad for the combo on a delivery app or social media during breakfast hours.
A hardware store does not need to text a past customer to generate a sale. Instead of sending an unsolicited SMS about paint discounts to everyone who bought a hammer last year, the store can analyse its aggregated data to spot a trend: paint sales peak during the first weekend of the month.
Using this insight, they can place a sponsored tile on a utility payment app during that specific window. The customer sees the offer when they are already in a ‘household management’ mindset, transforming the ad from a distraction into a helpful suggestion.
There is a broad middle ground where businesses can still achieve discovery, conversion, and growth without violating consent.
Privacy-preserving alternatives include: contextual and interest-based advertising, sponsored placements within trusted platforms, reward-based engagement models, and opt-in discovery environments where users choose to engage.
When implemented well, privacy-preserving digital marketing aligns incentives across the ecosystem. Businesses reduce regulatory risk, improve return on marketing spend, and gain clearer attribution.
Consumers experience fewer intrusive messages, greater control, and better discovery of relevant products and services. Regulators see higher baseline compliance, fewer complaints, and proof that innovation can coexist with strong protections.
This is already happening with localised solutions duly aligned to the Data Protection Act as data processors and controllers designing specifically for mobile-first, cost-sensitive markets.
That said, copy-pasting global compliance or marketing models into African markets rarely works. SMEs operate within thin margins, limited legal support, and heavy reliance on mobile infrastructure.
Effective compliance tooling must therefore be affordable, automated, and embedded into everyday business workflows. Local solutions understand these realities and translate regulation into usable systems.
Many compliance failures stem not from bad intent but from poor experience design. Clear consent flows, transparent value exchange, and simple opt-out mechanisms are conversion and trust optimisers.
Designing for user choice reduces complaints, increases engagement quality, and creates defensible audit trails. Years of unchecked unsolicited messaging have degraded the value of mobile channels. Restoring signal over noise ultimately benefits legitimate businesses and consumers alike.
Effective marketing does not require knowing who someone is. Relevance can be driven by context, moment, content adjacency, and aggregated behavioural signals. The future belongs to discovery engines that respect privacy while delivering commercial outcomes.
For regulators, businesses, and consumers alike, the path forward is collaborative. Regulators should continue pairing enforcement with guidance and ecosystem engagement.
Businesses should modernise marketing practices proactively, before enforcement forces the issue. Consumers should recognise that ethical marketing enables innovation, choice, and economic participation.
The objective is to enable respectful relevance where discovery thrives, trust is preserved, and the digital economy grows on solid foundations.
The businesses that adapt today will own the customer trust of tomorrow.
Source: https://www.businessdailyafrica.com/bd/opinion-analysis/columnists/why-privacy-preserving-digital-marketing-is-the-path-forward-5316144