Message-based value added services

Message-based valued added services are information society services provided through messages supported by electronic communications services (including, SMS - short message service - and MMS - multimedia messaging service).

Use of these services entails payment by users, on an immediate or deferred basis, of an additional amount above the cost of the electronic communications service, in return for the provision of the content transmitted by the information, entertainment or other service.

Frequently, these services entail the receipt by users of the mobile telephone service, by means of SMS or MMS, and often on a recurring basis, of ringtones, games, graphics, images and other data, following either registration over the Internet or the sending of a short message to a certain number.

Companies offering public communications networks and publicly available electronic communication services which support the provision of message-based valued added services, including SMS (short message service) and MMS (multimedia messaging service), shall ensure, by default and without charge, that access to the following services are barred:

a) services which involve sending more than one message or sending messages on a periodic or ongoing basis;

b) services which have erotic or sexual content.

Access to services barred by default may only be activated, in full or selectively, following a request made by the respective subscriber in writing or using another available durable medium.

Where access to services has been unbarred, companies offering public communications networks and publicly available electronic communication services which support the provision of message-based valued added services are required to bar communications to these services upon request of the subscriber and free of charge, regardless of whether a contract exists with the provider of these services or has been resolved. Barring must be implemented within 24 hours following the subscriber's request, in writing or using another available and easily usable durable medium; after this deadline, no charge may be made for any costs associated with the provision of services which the subscriber has asked the provider to bar.

This activity may be exercised by individuals who have a current activity registered with the Portuguese tax authorities or by legally constituted legal persons. Providers intending to exercise this activity are required to register with ANACOM.

Decisions on applications for registration are issued within 10 days from the receipt of the information required by law.  If no decision has been issued after 10 days, the application for registration shall be considered as tacitly approved.

Undertakings which are legally established in a Member State of the European Union or the European Economic Area for the provision of message-based valued added services are not required to register if they intend to carry on the same activity within Portuguese territory, either permanently, establishing themselves in Portugal, or on an occasional or sporadic basis, under the freedom to provide services.  However, such undertakings remain subject to the legal conditions governing the exercise of the activity as apply to them, including those under articles 5 to 9 of Decree-Law no. 177/99 of 21 May, as amended by Decree-Law no. 8/2013, of 18 Januaryhttps://www.anacom.pt/render.jsp?contentId=1151642.

Undertakings which are not established in Portugal, providing message-based valued added services to customers in the national territory, are only subject to the requirement to use specific access codes, allocated by ANACOM, to provide the following services:

• services declared as having erotic or sexual content;
• services which involve sending more than one message or sending messages on a periodic or ongoing basis, with added price per message;
• services intended for solicitation of donations subject to different tax rules.

On its website, ANACOM posts a list of providers 'SVA - prestadores registadoshttps://www.anacom.pt/render.jsp?categoryId=334099' operating in the national territory. This list includes provider names, addresses and other contact data, and a detailed description of the services provided, as well as the general conditions governing their provision.

Prior to commencing their activity, registered entities must give ANACOM notice as to the services which they intend to provide.  This notification must include indication of the provider's name, address and other contact details, as well as information on the general conditions governing provision of the services concerned.

Providers are also required, either simultaneously or subsequently, to apply to ANACOM for the allocation of access codes. This request must include the following items:

• an express declaration providing a detailed description of the service that the provider proposes to offer;
• technical plan identifying the equipment to be used;
• indication of the provider of supporting services.

The access codes will be assigned by ANACOM within 15 days after receipt of the specified items.

Without prejudice to paragraph 2 of article 8 of Decree-Law no. 177/99 of 21 May, as amended by Decree-Law no. 8/2013, of 18 Januaryhttps://www.anacom.pt/render.jsp?contentId=1151642, the provision of message-based valued added services in the national territory using access codes from numbering plans of other Member States of the European Union or of the European Economic Area in which the provider is established shall be allowed, provided that such codes fulfil the requirements set out in article 9-A in the Portuguese language and also fulfil the requirements of article 10 of Decree-Law no. 7/2004 of 7 January.

In accordance with Decree-Law no. 177/99 of 21 May, as amended by Decree-Law no. 8/2013, of 18 Januaryhttps://www.anacom.pt/render.jsp?contentId=1151642, providers of these services are subject to a set of obligations, including in particular:

• compliance with the conditions and limitations inherent to the respective access code;
• compliance with applicable legislation, particularly with regard to publicity, copyright and related rights, consumer protection, personal data protection and industrial property, as well as legislation governing gambling activities;
• provision of information intended for statistical purposes, on the terms, timescales and frequency required by ANACOM.

ANACOM is charged with allocating different access codes to providers of message-based valued added services according to their nature and content and in accordance with the detailed description of the service given by the provider itself. This makes it possible for users to immediately identify the type of service and so avoid being misled.

The following must have a specific access code:

• services declared as having erotic or sexual content;
• services which involve sending more than one message or sending messages on a periodic or ongoing basis, with added price per message;
• services intended for the solicitation of donations subject to different tax rules.

Currently, access to message-based valued added services is provided using five-digit codes, starting with 61, 62, 68 or 69.

In the event that the allocated access codes are used for the provision of services other than those which the providers of message-based valued added services proposed to provide, ANACOM shall suspend use of the access code allocated to the service provider, giving indication of the measures which need to be taken in order to remedy the situation.  For this purpose, providers are given a period not exceeding 10 days, in which to make the required corrections to their services.

If the company fails to take the stipulated measures, ANACOM will revoke allocation of the access code along with the company's registration, where applicable. Additionally, the provider in question will be prohibited from registering and from receiving allocation of new access codes.

Revocation of an access code's allocation or suspension of its use by the service provider, as well as cancellation of the provider's registration, may be publicized by ANACOM and notified to the provider of supporting services.

The general conditions governing provision of these services, which may include, among other elements, the identification of the provider, the nature of the services provided, applicable prices, the minimum contract period, if any, and procedures for terminating the contract, are freely defined by the providers of these services.
 
This means that they are not subject to approval by ANACOM, which is limited to simply making them available on its website.
 
It should be noted, however, that an added value may not be charged for messages for contracting a message-based value added service or for the confirmation of the request this service.
 
In the case of voting services, contests or other services, which likewise do not involve the sending of content, the sending of the message containing transmission of the obtained results shall be free.

Before providing the service, providers must send the client a free, clear and unambiguous message, using the electronic communications service that will also be used to provide the content to be transmitted by message.  This message shall contain:

• The identification of the provider;
• The nature of the service to be provided, the minimum contract period, where applicable, and, where the service to is to    provided on a continuing basis, how to proceed with the termination of the contract;
• The total price of the service;
• The request to confirm the order of the service.

If the service is to be provided on a continuing basis, the information on the corresponding total price shall include the price of each message to be received and the price to be periodically paid.

If the user does not respond to the request to confirm the order of the service this shall signify that no contract exists.

With respect to the provision of services intended for the solicitation of donations subject to different tax rules, providers shall send a free message containing tax information which is relevant to users who make a donation by this means.

The billing and collection of the sums corresponding to these services can either be made by the respective providers or by the provider of the supporting electronic communications service (mobile service operator).

If it is the supplier of the mobile service which performs the billing and collection, the sums arising from the provision of message-based value added services must be dealt with separately.

The provision of the mobile service cannot be suspended due to any failure to make payment for message-based value added services.

ANACOM is responsible for enforcing compliance of services provided with the allocated access codes, as well as compliance with prevailing legal rules as regards the conditions governing the provision of message-based valued added services.

Oversight of the provision of message-based valued added services is also provided by entities that, according to the matter in question, have powers and responsibilities under the application of the Código da Publicidade (Advertising Code) and the Código do Direito de Autor e Direitos Conexos (Copyright and Related Rights) and under legislation applicable to consumer and personal data protection.

Complaints may be addressed to operators in writing via the online complaint book (www.livroreclamacoes.pthttps://www.livroreclamacoes.pt/inicio). Complaints made are automatically sent to the respective operators, who have 15 working days to answer. ANACOM will be aware of both the complaints submitted and the replies sent by the operators. Users will also be able to go to the operators’ shop where the physical complaint book should be available.

For clarification of doubts by ANACOM, requests for information may be addressed through the same online complaint book platform by selecting “Request Information”.

If, based on complaints from users, ANACOM detects evidence of unlawful conduct, it may instigate corresponding breach proceedings, under which a penalty may be applied to the provider in question. However, these proceedings will not resolve the conflicts that gave rise to the complaints in question, and no obligations may be imposed in order to compensate any losses suffered by users of the services.