Assembleia da República (Assembly of the Republic)
Law
(This is not an official translation of the law)
Introduces the third amendment to Lei da Televisão (the Television Law), approved by Law no. 27/2007 of July 30, the twelfth amendment to the Código da Publicidade (Advertising Code), approved by Decree-Law no. 330/90 of 23 October and the first amendment to Law no. 8/2007 of 14 February, which restructures the public radio and television service concession, transposing Directive no. 2007/65/EChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=307L0065&model=guichett of the European Parliament and of the Council of 11 December.
Assembleia da República (Assembly of the Republic), pursuant to point c) of article 161 of the Constitution, decrees the following:
Article 1
Object
The present law transposes Directive no. 2007/65/EChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=307L0065&model=guichett of the Parliament and of the Council of 11 December into the legal order, amending Law no. 27/2007 of 30 July, the Código da Publicidade (Advertising Code) and Law no. 8/2007 of 14 February.
Article 2
Amendment to Law no. 27/2007 of 30 July
Article 1 to 7, 11, 12, 15, 20, 25, 26, 27, 31, 33 to 35, 40, 41, 44 to 47, 49, 54, 56, 59, 64, 65, 67 to 71, 73 to 78, 86, 87, 91 and 92 Law no. 27/2007 of 30 July are to read as follows:
«Article 1
[...]
The purpose of this law is to regulate access to the television activity and the pursuit thereof, and also to regulate the offering of on-demand audiovisual services to the public, transposing Directive no. 89/552/EEChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=389L0552&model=guichett of the Council of 3 October, as amended by Directive no. 97/36/EChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=397L0036&model=guichett of the Parliament and of the Council of 30 June and by Directive no. 2007/65/EChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=307L0065&model=guichett of the Parliament and of the Council of 11 December, into the national legal order.
Article 2
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1 - For the purposes of this law:
a) ...
b) "Production prop" means an audiovisual commercial communication consisting of the inclusion of or reference to a product or service within a programme and provided free of charge.
c) "Self-promotion" means an audiovisual commercial communication broadcast by a television operator or a provider of on-demand audiovisual services regarding their own products and services, including television programme services, on-demand audiovisual services, directly associated programmes and products, as well as cinematographic and audiovisual works in which the operator has participated financially;
d) "Product placement" means an audiovisual commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof within a programme, in return for payment or for similar consideration;
e) "Audiovisual commercial communication" means the presentation of images with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal person pursuing an economic activity, including but not limited to television advertising, teleshopping, sponsorship, product placement, production props and self-promotion;
f) "Virtual audiovisual commercial communication" means an audiovisual commercial communication resulting from the substitution, by electronic means, of other commercial communications;
g) "Dominance" means the relationship existing between a natural or legal person and a company, through which, regardless of whether its place of residence or registration is in Portugal or abroad, the former is able to exercise, directly or indirectly, a dominant influence over the latter, whereas, dominance will be deemed to exist in any case when a natural or legal entity:
i) Holds a majority shareholding or a majority of voting rights;
ii) Is able to exercise the majority of voting rights under the terms of a shareholders' agreement; or
iii) Has power to appoint or remove the majority of the members of the administrative or supervisory boards;
h) "Creative work" means a cinematographic or audiovisual production based on structured creative elements, including, for the purpose of complying with the percentage limits set out in Section V of chapter IV of this law, long and short fiction films and animation, documentaries, films made for television and series made for television and also, for the same purposes, television reports, educational, musical, artistic and cultural programmes, provided that they are eligible for copyright protection;
i) "Independently produced work" means work which is produced by an independent producer and which meets all of the following requirements:
i) Ownership of the rights over the work produced by the independent producer, with a clear contractual definition of the type and duration of the broadcasting rights granted to the television operators;
ii) Work produced with creative autonomy and freedom in the form of development, particularly as regards the choice of studios, actors, media and distribution;
j) "European work" means a cinematographic or audiovisual production that meets the requirements set out in point n) of article 1 of Directive no. 89/552/EEChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=389L0552&model=guichett of the Council of 3 October, as amended by Directive no. 97/36/EChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=397L0036&model=guichett of the Parliament and of the Council of 30 June and by Directive no. 2007/65/EChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=307L0065&model=guichett of the Parliament and of the Council of 11 December;
l) [Former point e).]
m) "On-demand audiovisual service provider» means the natural or legal person who has responsibility for the choice and organisation of the content of the audiovisual service and determines the manner in which it is organised;
n) "Television operator" means a legal person legally authorised to pursue the television activity, responsible for organizing television programme services;
o) "Sponsorship"means audiovisual commercial communication involving a contribution made by a public or private undertaking or natural person, other than the television broadcaster, on-demand audiovisual service provider orproducer of audiovisual works, to the financing of television programme services or on-demand audiovisual services with a view to promoting its name, its trademark, its image, its activities or its products;
p) "Independent producer" means the legal person whose principal activity is the production of cinematographic or audiovisual works, provided that the following cumulative requirements are met:
i) Direct or indirect shareholding does exceed 25% where held by a television operator and does not exceed 50% where held by multiple television operators;
ii) No more than 90% of sales, on an annual basis, are made to the same television operator;
q) "Programme" means a set of moving images, with or without sound, constituting an individual item within a programming schedule of a television programme service or within a catalogue of an on-demand audiovisual service;
r) "Television advertising" means the audiovisual commercial communications broadcast within television programme services in return for payment or for similar consideration or broadcast for self-promotional purposes by a public or private undertaking or natural person in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations;
s) "On-demand audiovisual service" or "non-linear audiovisual media service" means the offer to the general public of a catalogue of programmes and of accompanying text content, specifically including subtitling and electronic programming guides which catalogue is selected and organised by a provider of on-demand audiovisual services for viewing by a user, at the moment chosen by him and upon his individual request with use of an electronic communications network within the meaning given by Law no. 5/2004 of February 10, which concept does not include;
i) Any form of communication that is private in nature;
ii) Audiovisual content generated by private users to be shared, preferentially, within groups with common interests;
iii) Electronic versions of newspapers and magazines and complementary audiovisual content;
t) "Television programme service" means the sequence and uniform set of programming items provided by a television operator, organised with basis in a programming schedule;
u) "Telepromotion" means television publicity inserted during the interruption to a programme where products or services are presented by the programme presenter;
v) "Teleshopping" means the audiovisual commercial communications consisting of direct offers broadcast to the public with a view to supplying products or services in return for payment;
x) "Television" means theunencrypted or coded transmission of non-permanent images with or without sound over an electronic communications network, intended for simultaneous reception by the general public, which concept does not include:
i) Communications services to be received only upon individual request;
ii) The mere retransmission of third party broadcasting;
iii) The occasional transmission of events, by means of technical devices installed at places where such events take place, and intended for the public gathered therein.
2 - (Repealed.)
Article 3
[...]
1 - The following are subject to the provisions of the present law:
a) Televisionprogrammes transmitted by operators pursuing the television activity under the jurisdiction of the Portuguese State;
b) On-demand audiovisual services made available by providers which undertake said provision under the jurisdiction of the Portuguese State.
2 - Television broadcasters and broadcasters of on-demand audiovisual services are considered as being under the jurisdiction of the Portuguese state where they meet the criteria laid down in article 2 of Directive no. 89/552/EEChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=389L0552&model=guichett of the Council of 3 October, as amended by Directive no. 97/36/EChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=397L0036&model=guichett of the Parliament and of the Council of 30 June and by Directive no. 2007/65/EChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=307L0065&model=guichett of the Parliament and of the Council of 11 December.
3 - The preceding paragraph is applicable, mutatis mutandis, to distributors.
Article 4
Transparency of ownership and management
1 - Shares representing the capital of television operators which are constituted in the form of a public limited company are to be registered.
2 - The shareholders of television operators, the composition of the administrativeand management boards of television operators and the identification of the person responsible for giving guidance to and undertaking supervision of the content of their broadcasts are to be publicly disclosed on the website of the respective media organisations and are to be updated within seven days of any event occurring whereby:
a) Any shareholder reaches or exceeds 5%, 10%, 20%, 30%, 40% or 50% of theshare capital or voting rights;
b) A shareholder reduces his stake to a value which is less than one of the percentage thresholds indicated in the preceding point;
c) There is change in the dominance of the television broadcaster;
d) Any change occurs in the composition of the administrative and management boards or in the structure or responsibility governing the guidance and supervision of broadcast content.
3 - The reporting stipulated in the preceding paragraph shall contain, with such updates as are warranted:
a) The breakdown of the percentage shareholdings of the respective shareholders;
b) The identification of the entire chain of entities controlling a shareholding of at least 5% in the operators concerned; and
c) Indication of the shareholdings of said shareholders in other media organisations.
4 - Where no website is available, this information and the updating thereof, as referred to in paragraphs 2 and 3, is to be additionally reported by the operator responsible to Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), which will make said information available to the public.
5 - The provisions of paragraphs 2 and 3 apply, mutatis mutandis, to legal persons which are not corporations but which pursue the television broadcasting activity, including associations, cooperatives or foundations.
Article 5
[...]
1 - (Former body of article.)
2 - The public television service may incorporate on-demand audiovisual services or other audiovisual services such as are necessary to achieve its purposes.
Article 6
[...]
1 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will promote and encourage the adoption of co-regulation, self-regulation and cooperation mechanisms between the various television operators such as enable the accomplishment of the objectives set out in the following paragraph.
2 - The State, the public service concessionaire and the remaining television operators and providers of on-demand audiovisual services shall collaborate together in pursuit of the values of human dignity, the rule of law, democratic society and national cohesion, and in the promotion of the Portuguese language and culture, taking into account the special needs of certain categories of viewers.
Article 7
[...]
1 - ...
a) ...
b) ...
c) A district or a group of bordering districts or a metropolitan area on the mainland, or a group of islands in the Autonomous Regions;
d) A municipality or a group of bordering municipalities and any adjacent areas, according to the technical requirements of coverage, on the mainland, or an island comprising several municipalities in the Autonomous Regions.
2 - The geographic area allocated to each television programme service of national scope is to be covered by the same programme and recommended signal, except where otherwise authorised by determination of Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), without prejudice to the use of additional coverage resources, where duly authorised.
3 - ...
4 - ...
Article 11
[...]
1 - The pursuit of the television activity consisting of the organisation of general or thematic informative programm services and having international, national or regional scope, under the terms of this law, by persons or undertakings other thancompanies or cooperatives whose primary object is the pursuit thereof is prohibited.
2 - The pursuit of the television activity consisting of the organisation of informative general or thematic programme services with local scope, under the terms of this law, by persons or undertakings other than companies or cooperatives whose primary object is the pursuit of the media activity is prohibited.
3 - (Former body of paragraph 2)
a) [Former point a) of paragraph 2]
b) [Former point b) of paragraph 2]
c) 100 000 (euros) or 50,000 (euros), depending upon whether involving operators which provide television programme services of regional or of local coverage, irrespective of their type.
4 - (Former body of paragraph 3)
a) [Former point a) of paragraph 3]
b) 500 000 (euros) in case of networks which cover a group of districts on the mainland or a group of islands in the Autonomous Regions, or an island with several municipalities, or a metropolitan area;
c) 100 000 (euros) in case of networks which cover a municipality or a group of neighbouring municipalities.
5 - Providers which engage, on a non-profit basis, solely in the provision of television programme services which are educational or cultural or which provide scientific dissemination are exempt from the provisions of paragraphs 2 and 3, which providers may take the form of an association or foundation.
6 - (Former paragraph 5.)
Article 12
[...]
1 - Political parties and associations, trade unions, employer and professional associations and public professional associations are prohibited from directly or indirectly pursuing or financing the television activity, except where such activity is operated exclusively over the Internet or using restricted access channels and where it consists of the organisation of programme services of a doctrinal, scientific or institutional nature.
2 - Without prejudice to the provisions of article 5, the State, Autonomous Regions, local authorities, and associations thereof, are prohibited, whether directly or through state or regional public companies, municipal, metropolitan or inter-municipal companies, from pursuing or financing the television activity, except where such activity is operated exclusively over the Internet and where it consists of the organisation of programme services of ascientific or institutional nature.
Article 15
[...]
1 - ...
2 - ...
3 - The regulation will set out the conditions which determine the admissibility of applications, as well as the documentation to be attached thereto, in order to enable verification that applicants and projects are compliant with legal and regulatory requirements, which requirements include:
a)...
b) ...
c) ...
d) ...
e) ...
f) The sufficiency of assigned human and technical resources;
g) Proof of compliance with tax and social security obligations, whereas presentation of the respective certificate is waived pursuant to Decree-Law no. 114/2007 of 19 April.
4 - ...
5 - ...
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8 - ...
9 - ...
10 - ...
Article 20
[...]
Television operators shall commence broadcasting of authorised or licensed television programme services within 12 months of the date of the final decision as to the allocation of the corresponding authorising title.
Article 25
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10 - The distribution operators are to have access, subject to market uses in accordance with competition rules, to television programme services, according to transparent, reasonable and non discriminatory conditions, with a view to their distribution.
11 - (Former paragraph 10.)
Article 26
[...]
1 - Freedom of expression of thought through television programme services and on-demand audiovisual services constitutes part of the fundamental right of citizens to free and pluralistic information, which is essential to democracy and to the social and economic development of the country
2 - Except in the cases foreseen under this law, pursuit of the television activity and on-demand audiovisual services is based onthe freedom of programming, whereby neither the Public Administration nor any sovereign body, with the exception of the law courts, may prevent, limit or impose the broadcast of any programmes.
Article 27
[...]
1 - The programming of television programme services and of on-demand audiovisual services shall respect human dignity and shall respect fundamental rights, freedoms and guarantees.
2 - Television programme services and on-demand audiovisual services shall not, through the programming which they broadcast, incite racial, religious, or political hatred or hatred based on colour, ethnic or national origin, gender, sexual orientation or disability.
3 - The broadcasting of programmes which are likely to cause obvious and serious harm to the free personality development of children and adolescents, including programmes which contain gratuitous violence, and in the case of the unrestricted access programme service, programmes which contain pornography, are prohibited.
4 - The television broadcast of any other programme which is likely to have an adverse effect on the development of children or adolescents is only to be broadcast while permanently displaying an appropriate visual symbol and only between 10:30 p.m. and 06.00 a.m.
5 - ...
6 - ...
7 - The provisions of the above paragraphs apply to all programming elements, including advertising and messages, extracts or images of self-promotion, and apply also to teletextservices and electronic programming guides.
8 - ...
9 - ...
10 - The programmes of on-demand audiovisual services which are likely to cause obvious and serious harm to the free personality development of children and adolescents, including programmes having pornographic content, may only be made available provided that sufficient technical features are adopted so as to prevent access to such content by children and adolescents.
11 - Television operators and providers of on-demand audiovisual services may adopt codes of conduct which respond to the requirements set out in the present Article, with consultation, in the case of television operators, of their editorial boards, in the context of their assignments.
Article 31
[...]
Without prejudice to chapter vi, television operators, distributors and providers of on-demand audiovisual services are prohibited from granting broadcasting time to political propaganda.
Article 33
[...]
1 - The persons responsible for conducting performances or other public events taking place on national territory, as well as holders of exclusive rights over such performances or events, may not oppose the broadcasting of short extracts thereof, where of an informative nature, by programmes provided by any television broadcasters, national or otherwise.
2 - ...
3 - Where a broadcaster or provider under the jurisdiction of the Portuguese State holds exclusive broadcasting rights in the national territory in respect of events occurring in the territory of another Member state of the European Union, it shall provide other national operators which are interested in broadcasting short and informative extracts of such events with access to the respective signal.
4 - Notwithstanding agreement providing for different uses, the extracts referred to in paragraphs 1 and 3 shall:
a) [Former point a) of paragraph 3]
b) [Former pointb) of paragraph 3]
c) [Former point c) of paragraph 3]
d) [Former point d) of paragraph 3]
5 - Except where specific agreement is made otherwise, short extracts of an informative nature relating to performances or other public events which are subject to exclusive rights may not be used in on-demand audiovisual services except when included in programmes previously broadcast by the same provider in television programme services.
Article 34
General obligations of providers and broadcasters
1 - ...
2 - ...
3 - Subsequent to consulting Instituto Nacional para a Reabilitação (National Institute for Rehabilitation), other organisations representing people with disabilities, television operators and providers of on-demand audiovisual services, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will establish a set of obligations in respect of accessibility of television programme services and on-demand audiovisual services to persons with special needs; the establishment of such obligations will be based on a multi-year plan that provides for gradual compliance therewith, taking into account the technical and market conditions which are deemed as prevailing at any given moment, with a view, in particular, to the nature of the service, the use of subtitling, sign language interpretation, audio description or other techniques deemed necessary, as well as the availability of easily understandable navigation menus.
4 - In addition to the provisions of points a) to d) and point f) of paragraph 2, the following are obligations applicable to general television programme services of regional or local scope:
a) To extend television programming to content of a regional or local nature;
b) To broadcast information that is of specific interest given the geographic scope of its audience;
c) To promote the characteristic values of the regional or local cultures.
5 - The provisions of points a), b) and g) constitute obligations of thematic programme services, according to their nature, and the provisions of points c) and f) of paragraph 2 constitute obligations of thematic programme services, regardless of their nature.
Article 35
Editorial responsibility and autonomy
1 - ...
2 - ...
3 - Each provider of on-demand audiovisual services shall have a person who is to beresponsible for the selection and organisation of the catalogue of programmes.
4 - The television operator is charged with the appointment and the dismissal of the person responsible for the informative content of television programmes, after consulting the editorial board.
5 - The requirement to conduct a prior hearing of the editorial board is waived in respect of the appointment of the first person responsible for the informative content of each programme service and in respect of programme services which are doctrinal or denominational in nature.
6 - The management posts of the information area and the head thereof are to be exercised with editorial autonomy, whereby the television operator is prohibited from interfering in the production of content which is informative in nature and is further prohibited from interfering in the manner in which such content is presented.
7 - As an exception, the provisions of the preceding paragraph do not apply to guidelines which are aimed at ensuring strict observance of legal provisions breach of which would result in the television operator being held responsible for a criminal or administrative offence.
Article 40
Time allotted to television advertising and teleshopping
1 - Broadcasting time allotted to television advertising and teleshopping between two-hour periods may not exceed 10% in the case of conditional access television programme services and may not exceed 20% in the case of free-to-air television programme services, whether unrestricted or subject to subscription.
2- The limits established in the preceding paragraph do not apply to self-promotions, telepromotions and blocks of teleshopping, and do not apply to the promotion of associated products, including where not directly related to the programmes of the television operators.
3 - Blocks of teleshopping are to have a minimum uninterrupted duration which is not less than fifteen minutes.
Article 41
Sponsorship
1 - Sponsored television programme services and on-demand audiovisual media services, as well as the respective programmes, will beclearly identified as such by the name, logo or other distinguishing symbol of the sponsor of its products or of its services.
2 - Programmes which are sponsored are to be identified additionally at the beginning, as they restart and at the end of the programme, which indication may also be made cumulatively at other points in time, provided that the integrity of the programmes is not undermined, taking into account thebreaks, their duration and nature, and provided that this is done in such a way as does not infringe the rights of any holders.
3 - News services and political information programmes may not be sponsored.
4 - The content of a sponsored television programme service, on-demand audiovisual service or programme or, in the case of television programme services, its programming, may under no circumstances be influenced in such a way that affects its editorial responsibility and independence.
5 - Sponsored programme services or programmes, as well as the identification of the respective sponsors, may not directly encourage the purchase or rental of products or services of the sponsor or of third parties, including through specific promotional references to such goods or services.
Article 44
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1 - ...
2 - ...
3 - ...
4 - For the purposes of calculating the percentage of programming referred to in the preceding paragraph, only the first five screenings of each work is to be counted, regardless of the year in which they are aired.
5 - (Previous paragraph 4.)
6 - (Previous paragraph 5.)
Article 45
[...]
1 - (Former body of article.)
2 - On-demand audiovisual services shall contribute to the promotion of European works, specifically through financial contributions to their production or through their progressive incorporation into the respective catalogue.
3 - On-demand audiovisual services are to give particular visibility to European works in their catalogue, implementing features which enable the public to search for such works by origin.
4 - Compliance with the rules governing the promotion of European works set out in paragraphs 2 and 3 of this article is subject to annual review by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media).
Article 46
[...]
1 - Television operators engaged in the provision of television programme services with national coverage shall ensure that no less than 10% of their programming, excluding the time devoted to news, sports events, competitions, advertising, teleshopping and teletext services, consists of the broadcast of creative works having independent European production and produced less than five years previously.
2 - The programme services referred to in the preceding paragraph, where classified as general, shall allocate no less than one half of the time of the percentage of programming so stipulated to the broadcast of creative works of independent European production which were produced originally in Portuguese and produced less than five years previously.
3 - For the purposes of calculating the percentage of programming referred to in the preceding paragraphs, only the first five screenings of each work areto be considered, regardless of the year in which they are aired.
Article 47
[...]
1 - Compliance with the obligations set forth in articles 44 to 46 shall be assessed on an annual basis and is to take into account, where applicable, the specific nature of thematic television programme services and the broadcaster's responsibilities with regard to information, education, culture and entertainment.
2 - Reports on the assessment referred to above, containing the respective findings, are to be published on the website of Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) no later than 30 June of the year following the year to which they refer.
Article 49
[...]
Television operators and providers of on-demand audiovisual services shall provide Entidade Reguladora para a Comunicação Social(Regulatory Authority for the Media) with all the elements it requires to oversee compliance with the obligations set forth in articles 44 to 46, which elements are to be provided on a quarterly basis and according to a model which said Regulatory Authority defines.
Article 54
[...]
1 - The second general programme service of national scope will include programmes having a strong cultural and educational component, enhancing education, science, investigation, arts, innovation, entrepreneurialism, economic issues, social work, disclosure of humanitarian causes, non-professional and school sport, religious faiths, independent production of creative works, Portuguese cinema, environment, consumer protection and audiovisual experimentalism.
2 - ...
3 - ...
Article 56
[...]
1 - The television programme services specifically aimed at the Autonomous Regions of the Azores and Madeira are to take due regard of the respective social, cultural and geographic realities and enhance regional production.
2 - ...
3 - ...
Article 59
[...]
1 - ...
2 - (Previous paragraph 3.)
3 - The entities referred to in paragraph 1 shall be entitled, free of charge and on an annual basis, to the following airtime:
a) Ten minutes per each party represented in the Assembleia da República (Assembly of the Republic) or in the Assembleias Legislativas das Regiões Autónomas (Legislative Assemblies of the Autonomous Regions) plus a further thirty seconds per elected member;
b) Five minutes pereach party which, without representation in Assembleia da República (Assembly of the Republic) or in the Assembleias Legislativas das Regiões Autónomas (Legislative Assemblies of the Autonomous Regions), participated in the most recent legislative elections, plus a further thirty seconds per 15 000 votes obtained in said elections;
c) [Former point c) of former paragraph 2]
d) [Former point d) of former paragraph 2]
e) [Former point e) of former paragraph 2]
4 - In the case of the Autonomous Regions, the right of broadcast referred to in the preceding paragraph is to be exercised by the parties that stood in elections to Assembleias Legislativas Regionais (Regional Legislative Assemblies) in programme services specifically aimed at the respective Region.
5 - (Former paragraph 4)
6 - (Former paragraph 5)
7 - (Former paragraph 6)
Article 64
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6 - The provisions set forth in the preceding paragraphs shall correspondingly apply, in respect of programme services specifically aimed at the Autonomous Regions, to the right to political reply of the parties which, while represented in the Assembleias Legislativas Regionais (Regional Legislative Assemblies), are not part of the respective Regional Governments.
Article 65
[...]
1 - Any natural or legal person, organisation, public service or body which is referred to, albeit indirectly, in television programme services or in on-demand audiovisual services in such a way that their reputation or good name might be affected is granted a right to reply in said services.
2 - The persons and undertakings referred to in the preceding paragraph are entitled to rectification in television programme services and in on-demand audiovisual services in which false or inaccurate references about them have been made.
3 - The right to reply and to rectification shall be prejudiced in the event that, with the express agreement of the concerned party, the television operator or provider of on-demand audiovisual services has corrected or clarified the relevant text or image, or has allowed the interested party to present, by other means, the facts or views which it has been claimed give cause to reply and to rectification.
4 - ...
Article 67
[...]
1 - ...
2 - ...
3 - The text of the reply or rectification is to be submitted to the television operator or provider of on-demand audiovisual services, bearing the signature and identification of the author, using a procedure which provides proof of receipt and expressly invoking the right of reply or rectification or the applicable legal provisions.
4 - ...
5 - ...
Article 68
[...]
1 - In the event that a reply or rectification is untimely, originates from persons without legitimacy, is clearly unsubstantiated or is contrary to the provisions of paragraphs 4 and 5 of the preceding article, the television operator or provider of on-demand services may refuse to broadcast it, in which case it shall inform the concerned party in writing as to the refusal and the grounds therefor within twenty-four hours following receipt of the reply or rectification.
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Article 69
[...]
1 - The reply or rectification is to be broadcast within twenty-four hours following delivery of the respective text to the television operator or provider of on-demand audiovisual services, except where as provided for under paragraphs 1 and 2 of the preceding article.
2 - Replies and rectifications are to be broadcast free of charge:
a) In television programme services, in the same programme or, where this is not possible, at an equivalent broadcasting time;
b) In on-demand audiovisual services, in the programme associated, in the catalogue, with the programme to which the reply or rectification refers, with the same prominence and properly identified as a reply or rectification.
3 - Replies or rectifications are:
a) In respect of television programme services, to be broadcast as many times as was broadcast the reference giving them cause.
b) In respect of on-demand audiovisual services, to remain accessible to the public for as long as the programme making the reference which gave cause remains in the catalogue or, irrespective of this fact, for a period of not less than seven days.
4 - ...
5 - ...
Article 70
[...]
1 - The conditions under which civil liability may be incurred, as resulting from acts committed through television programme services or on-demand audiovisual services, is to be determined according to general principles.
2 - Television broadcasters or providers of on-demand audiovisual services shall be held jointly liable with those responsible for the broadcast of pre-recorded material, except in respect of material which is broadcast pursuant to the right of broadcast time, political reply, reply and rectification or in the course of interviews or debates involving persons who are not contractually bound to the broadcaster or provider.
Article 71
Crimes committed through television programme
services or on-demand audiovisual services
1 - Such acts or behaviours that are damaging or harmful to legally protected interests and which are perpetrated through television programme services or through on-demand audiovisual services shall be punishable according to general provisions, with the adaptations laid down in the following paragraphs.
2 - Where the law does not provide for an aggravation on account of the means of perpetration, crimes committed through television programme services or through on-demand audiovisual services which are not foreseen in this law shall be punishable by penalties established in the respective criminal provisions, having their maximum and minimum limits increased bythe order of one third.
3 - ...
4 - ...
5 - ...
6 - Technicians at the service of television operators or of the providers of on-demand audiovisual services will not be held liable for the broadcasts to which they contributed on a professional basis, provided that they are not accountable for the awareness of the criminal nature of their act.
Article 73
[...]
1 - Those responsible for giving guidance to and for the supervision of the content of television broadcasts or responsible for the selection and organisation of the catalogue of on-demand audiovisual services, or whosoever replaces them, commits a crime of qualified disobedience when, in order to prevent the intended purposes:
a) ...
b) ...
c) ...
d) They fail to comply with a decision to suspend a broadcast or repeated broadcast of television programme services, the offer of on-demand audiovisual services or the respective programmes.
2 - ...
Article 74
[...]
1 - Whoever prevents or prejudices the broadcast of programme services or the offer of on-demand audiovisual services, or seizes or damages the material that is necessary for the pursuit of the television activity, except where as provided for under the law, with the purpose of undermining the freedom of programming and information, is to be punished with imprisonment for a period up to 2 years or with a fine of up to 240 days where no heavier penalty is provided for under criminal law.
2 - ...
3 - ...
Article 75
[...]
1 - The following are punishable with a fine of 7 500 (euros) to 37 500 (euros):
a) Failure to comply with the provisions of article 4-A, of paragraph 3 of article 19, of the first part of paragraph 4 of article 27, of articles 29 and 42, ofparagraph 5 of article 44, of articles 45 and 46, of paragraph 6 of article 40-B, of paragraph 2 of article 41-B, of paragraph 2 of article 41-C and of article 58;
b) ...
c) ...
2 - In the case of programme services having local coverage, the minimum and maximum of the offenses foreseen in the preceding paragraph are reduced to one third.
3 - Negligence is punishable with the minimum and maximum limits of the fines under the preceding paragraph reduced to the order of one half.
Article 76
[...]
1 - The following are punishable with a fine of 20 000 (euros) to 150 000 (euros):
a) Failure to comply with the provisions of paragraphs 1, 6, 8 and 9 of article 25, the second part of paragraph 4 and of paragraph 8 of article 27, of paragraph 1 of article 30, of paragraph 5 of article 32, of paragraphs 4 and 5 of article 33, of paragraph3 of article 34, of articles 35, 36, 37, 40 and 40-A, of paragraphs 1 to 5 of article 40-B, of articles 41 and 41-A, of paragraphs 1 and 3 of article 41-B, of paragraphs 1 and 3 of article 41-C, of paragraphs 2and 3 of article 41-D, of article 43, of paragraphs 1 to 3 of article 44, of article 49, of paragraph 4 of article 59, of paragraphs 1 and 4 of article 61, of paragraphs 2 and 3 of article 64, of article 69 and of paragraph 1 of article 92;
b) ...
c) ...
d) Failure to comply with the conditions governing the inclusion of features that allow passage into the interactive environment which contains advertising as provided for in paragraph 1 of Article 41-D.
2 - In the case of programme services having local coverage, the minimum and maximum of the offenses foreseen in the preceding paragraph is reduced to one third.
3 - Negligence is punishable with the minimum and maximum limits of the fines under the preceding paragraph reduced to the order of one half.
Article 77
[...]
1 - The following are punishable with a fine of 75 000 (euros) to 375 000 (euros) and suspension of the license or authorisation of the programme service or of the broadcast of the programme through which the offence is committed, for a period of 1 to 10 days, according to the severity of the offense:
a) Failure to comply with the provisions of paragraphs 1 to 3 of article 4, 3 and 4 of article 4-B and 2 do article 7, of articles 11 and 12, of paragraphs 1 of article 21 and 2 and 3 of articles 25 and 27, of article 31, of paragraphs 2 and 6 of article 32, 1 and 3 of article 33, 1 of article 39 and 2 of article 60;
b) ...
c) ...
d) ...
e) ...
2 - ...
3 - In the case of programme services having local coverage, the minimum and maximum of the offenses foreseen in the preceding paragraph is reduced to one third.
4 - Negligence is punishable with the minimum and maximum limits of the fines under the preceding paragraph reduced to the order of one half.
Article 78
[...]
1 - The operator or provider through whose television programme services or audiovisual programme service the offence is committed will be held liable for the breaches foreseen in the preceding articles, except in respect of any breach of paragraph 2 of article 60, in which case the holder of the right to broadcast time is held liable.
2 - ...
Article 86
Limitations on the re-broadcast of television programme services
1 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may suspend the re-broadcast of television programme services or of the respective programmes:
a) In the case of unrestricted, free-to-air television programme services or unrestricted television programme services subject to subscription, where these cause obvious and serious harm to the free personality development of children and adolescents, including the broadcast of programmes containing scenes of pornography or gratuitous violence; or
b) Regardless of the type of programme service, where these incite hatred, racism or xenophobia; and where the television broadcaster has committed a similar breach at least twice during the preceding 12 month period.
2 - ...
3 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) shall notify the member of Government responsible for media as to the requests and notifications it effects under the terms of the preceding paragraph.
Article 87
[...]
Proceedings for criminal offences which are committed through television programme services will be governed by the provisions of the Código de Processo Penal (Code of Criminal Proceeding) and complementary legislation, with the specificities resulting from the present law.
Article 91
[...]
1 - Where so requested by Ministério Público (Public Prosecution Service) or by an injured party, and following a judicial ruling, the operative part of final judgments in respect of crimes committed though television programme services or through on-demand audiovisual services, as well as the identification of the parties concerned, is to be broadcast by the respective broadcaster.
2 - A defendant in criminal proceedings reported on television who is subsequently acquitted in a final judgement may make a request to the court that the findings of the judgement are also reported by the broadcaster, in the same programme service and with an equivalent schedule, duration and prominence.
3 - In the case of on-demand audiovisual services, the situation described in the preceding paragraph is made subject, mutatis mutandis, to the provisions of point b) paragraphs 2 and 3 of article 69, in respect of the transmission of reply or rectification.
4 - Broadcast of the operative part of judgments referred to in preceding paragraphs is to be undertaken in such a manner as to safeguard the rights of third parties.
Article 92
[...]
1 - ...
2 - The legal deposit referred to in the preceding paragraph will be governed by a specific statutory instrument, which will safeguard the interests of authors, producers and operators.
3 - ...»
Article 3
Addendum to Law no. 27/2007 of 30 July
The following additional articles are hereby inserted into Law no. 27/2007 of 30 July: articles 1-A, 4-A, 4-B, 40-A, 40-B, 40-C, 41-A, 41-B, 41-C, 41-D, 77-A, 86-A as 86-B, which read as follows:
«Article 1-A
Applicable regulation
1 - On-demand audiovisual services rules are also subject to the rules governing information society services and governing electronic commerce, as laid down in Decree-Law no. 7/2004 of 7 January, as amended by Decree-Law no. 62/2009 of 10 March, where appropriate to the nature thereof and provided that said rules do not conflict with the provisions of the present law.
2 - Notwithstanding the provisions of the present law, audiovisual commercial communications are additionally subject, mutatis mutandis, to the provisions of the Código da Publicidade (Advertising Code), as approved by Decree-Law no. 330/90 of 23 October and complementary legislation, as well as to the provisions of Law no. 37/2007 of 14 August and of Decree-Law no. 176/2006 of 30 August.
Article 4-A
Identification obligations
1 - Television operators, distribution operators and providers of on-demand audiovisual services shall disclose, so as to enable easy, direct and permanent access:
a) The respective names or company names;
b) The name of the director or person responsible for each service, where applicable;
c) The geographic address at which they are established;
d) Their means of contact, including telephone contacts and postal and electronic address;
e) The identification and contact details of the competent regulatory authorities.
2 - In the case of television programme services, a visual symbol is to be permanently displayed, except during advertising blocks, enabling identification of each service, whereas the information stipulated under the preceding paragraph is to be disclosed:
a) On the respective website, the address of which shall be disclosed at the beginning and end of each news service or, where television programme services do not include informative programming, during broadcasting at intervals not exceeding four hours;
b) Where available and insofar as it is feasible, within complementary services, such as teletext pages and electronic programming guides.
3 - With regard to on-demand audiovisual services, the information referred to in paragraph 1 is to be made available on the electronic pages which provide access to the respective programmes.
4 - Providers of on-demand audiovisual services are required to notify Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) by electronic means, as to the beginning and end of the activity of each of one its services, as to the items referred to in points a) to d) of paragraph 1 and any updates thereto.
5 - The notifications stipulated in the preceding paragraph are to be made no later than 10 working days following the occurrence of the event by which they are required, and will not be subject to any charges or fees.
Article 4-B
Competition, non-concentration and pluralism
1 - Television operators are subject to the general regime governing the assurance and promotion of competition
2 - Concentration operations between television operators which are subject to the intervention of the authority regulating competition are to be submitted to a prior opinion of Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), which opinion will be binding where there is deemed to be a risk to free expression and to the exchange of different views and opinions.
3 - It is prohibited for any natural or legal person to hold, either directly or indirectly, including though a relationship of control, a number of licenses for national unrestricted free-to-air television programme services exceeding 50% of all the licenses granted to similar programme services in the same area of coverage.
4 - The practice of legal actswhich entail changes to the control of providers pursuing the television activity under license are prohibited except where a period of not less than three years has elapsed following the original granting of the license, where a period of not less than two years has elapsed following modification of the approved project and where a period of not less than one year has elapsed following the most recent renewal; such acts are additionally subject to authorisation being given by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media).
5 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will decide thereon, subsequent to having heard interested parties and within a period of 30 working days following verification and consideration of the initial conditions determining the award of the title and the interests of the potential audience of the programme services provided, ensuring that the conditions which gave basis to the decision on the original project or on subsequent alterations are safeguarded.
6 - The provisions of the preceding paragraphs shall apply, mutatis mutandis, to legal persons which are not corporations, including legal persons which are associations, cooperatives or foundations and which pursue the television activity, whereas Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) shall, where the requisites for performance of the operation are fulfilled, undertake the respective alterations to the title under which pursuit of the activity is authorised.
Article 40-A
Identification and separation
1 - Television advertising and teleshopping shall be easily identifiable as such and clearly separated from other programming.
2 - The separation required under the preceding paragraph is to be effected:
a) Between programmes and during programme breaks, through the insertion of optical and acoustic separators at the beginning and end of each break, which separator at the beginning of each break is to contain, in a manner that is perceptible to viewers and as appropriate, the word 'Publicidade' (Advertising) or ' Televenda' (Teleshopping);
b) With use of a split screen, by demarcating an area on the screen, never more than a quarter part thereof, clearly separated from the remaining area and identified in a manner that is perceptible to viewers, containing the word 'Publicidade' (Advertising).
Article 40-B
Insertion
1 - Television advertising and teleshopping may be inserted provided that such insertions do not prejudice the integrity of the programmes, are in keeping with the natural breaks of programmes as well as their duration and nature, and provided that they do not infringe the rights of any holders:
a) Between programmes and in programme breaks;
b) Using the full screen or part thereof.
2 - Insertion of television advertising and teleshopping entailing an increase in sound volume compared to that applied to remaining programming is prohibited.
3 - The following are prohibited:
a) Teleshopping using a split screen;
b) Teleshopping during children's programmes and during the fifteen-minute periods immediately preceding and following the broadcast of children's programmes;
c) Split-screen television advertising during news programs and political information programs, children's programmes and programmes providing broadcast of religious services;
d) Split-screen television advertising during the broadcast of creative works and during debate or interview programmes.
4 - Transmission of news, political information programmes, cinematographic works and films made for television, excluding series, serials and documentaries may be interrupted by television advertising and/or teleshopping once for each scheduled period of at least 30 minutes.
5 - The transmission of children's programs may be interrupted by television advertising once for each scheduled period of at least thirty minutes provided that the scheduled duration of the programme exceeds thirty minutes.
6 - The broadcast of religious services may not be interrupted by the insertion of television advertising and/or teleshopping.
7 - Isolated messages of television advertising and teleshopping, except where presented in the transmission of sports events, may not be inserted other than in exceptional circumstances.
Article 40-C
Telepromotion
1 - Telepromotion isonly admissible in light entertainment programmes which have the nature of competitions or similar.
2 - Viewers are to be informed of the existence of telepromotion at the beginning and end of programmes that make use of this form of advertising.
3 - Telepromotion is to be immediately preceded by an optical or acoustic separator and accompanied by a symbol which signals the commercial nature thereof.
Article 41-A
Product placement and production props
1 - Product placement is prohibited except in cinematographic works, films and series made for television programme services or on-demand audiovisual services, sports programmes and light entertainment programmes.
2 - Product placement in children's programmes is prohibited.
3 - The content of programmes which contain product placement and, in the case of television programme services, their scheduling shall not be influenced in any such way as impacts their responsibility and editorial independence.
4 - Programmes which contain product placement shall not directly encourage the purchase or rental of products or services, in particular by making special promotional references to such products or services.
5 - Product placement shall not give undue prominence to products, services or trademarks, specifically where the reference made is not justified on editorial grounds or where such reference is likely to mislead the public with respect to their nature, or by the recurrent form in which such items are presented or shown.
6 - When produced or commissioned by the television operator, by the provider of on-demand audiovisual services or by an affiliated thereof, programmes containing product placement shall be appropriately identified at the start and the end of the programme, and when a programme resumes after an advertising break.
7 - Production props may be provided to any programme when the products or services used are of no significant commercial value, subject to the provisions of paragraphs 3 and 6.
8 - The presentation, during the exhibition of children's programmes, of any type of commercial messages which may impair the physical and mental development of minors is prohibited, which commercial messages include those related to food and beverages containing nutrients and substances with a nutritional or physiological effect, excessive intakes of which in the diet are not recommended.
9 - The use of production props where the goods or services used have significant commercial value is subject to the rules governing product placement, including those rules referring to administrative offenses.
10 - Significant commercial value is to be determined by agreement made between the television operators and the providers of on-demand audiovisual services, which agreement shall be subject to ratification by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media).
11 - In the event that there is no agreement, as referred to in the preceding paragraph, or where there is a lack of subscription to such an agreement, significant commercial value will be determined by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), following a prior hearing of the operators and providers of the sector, and shall, in any event, be based on the commercial value of products or services involved and the publicity value corresponding to the duration of broadcasting during which the product or service is commercially identifiable, particularly through the display of the brand, in addition to the time given to its identification immediately preceding or subsequent to the programme, according to the highest television advertising price rate applying on the date on which the programme is first broadcast or is first made available on demand.
Article 41-B
Virtual audiovisual commercial communications
1 - Virtual audiovisual commercial communications may not be inserted except where commercial communications previously existed and provided that they are not given greater prominence and that agreement is obtained from the organisers of the broadcast event and from the holders of broadcasting rights.
2 - Consumers are to be informed as to the inclusion of virtual audiovisual commercial communications at the beginning and end of each programme where these occur.
3 - The inclusion of virtual audiovisual commercial communications in creative works, as defined in point h) of paragraph 1 of article 2, and in debate or interview programmes is prohibited.
Article 41-C
Broadcast time
There is no limitation applicable to the amount of broadcasting time, within television programme services or on-demand audiovisual services, given to the identification of sponsorship, of product placement and of production props, or to the dissemination of messages that relate to public services or public interest purposes and humanitarian appeals which are broadcast free of charge.
Article 41-D
Interactivity
1 - Advertising inserted into on-demand audiovisual services or on-demand audiovisual services may include features which enable passage into an interactive environment that contains advertising.
2 - Such interactive features as are referred to in the preceding paragraph are prohibited during children's programmes and during the five-minute periods immediately preceding and subsequent to the broadcast thereof.
3 - The transition to the interactive environment that contains advertising is to be preceded by a notice on an intervening screen that contains clear information on the destination of this transition and allows easy return to the linear environment.
4 - The provision in television programme services of the features described in the preceding paragraph is subject to the general rules governing advertising and particularly to those rules which stipulate restrictions on the subject and content thereof.
Article 77-A
Offences committed though on-demand audiovisual services
1 - When the offenses referred to in articles 75, 76 and 77 are committed through on-demand audiovisual services, the minimum and maximum limits of the respective fines are reduced to one quarter.
2 - The act of committing an offence under article 77 through on-demand audiovisual services may give rise to the suspension of the on-demand audiovisual service or of the programme in which the offence was committed, in accordance with the severity of the offense, for a period of 1 to 10 days.
Article 86-A
Relocation of broadcasts
1 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may take appropriate measures as are necessary and proportionate to achieve cessation of offences committed through programme services provided by television broadcasters under the jurisdiction of another Member State where said Authority is satisfied that such services are wholly or mainly targeted at the Portuguese territory and that the operators thereof have established themselves in another Member State in order to circumvent the stricter rules to which they would be subject under the jurisdiction of the Portuguese State.
2 - The measures referred to above may be adopted only when, after having made a detailed request to the competent Member State that it put an end to the infringing action, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media):
a) Has not, within a period of two months, been informed by the Member State concerned as to the results obtained, or where it deems such results to be unsatisfactory; and
b) It has subsequently given notice, on a reasoned basis, to the European Commission and to the Member State concerned of its intention to take such measures and the Commission does not lodge opposition to the decision within the subsequent period of three months.
3 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will provide procedures which ensure reciprocity in the exercise of the option referred to in paragraph 1 by other Member States in respect of television programme services of television operators which are under the jurisdiction of the Portuguese State.
4 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) shall notify the member of Government responsible for the media as to any requests and notifications it executes pursuant to paragraph 2, and as to any requests and notifications it receives in respect of situations foreseen in the preceding paragraph.
Article 86-B
Limitations on the provision of on-demand audiovisual services
1 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may, insofar as is proportionate to its oversight objectives, impede the provision of programmes included in catalogues of on-demand audiovisual services which breach the provisions of paragraphs 2 and 10 of article 27.
2 - In the case of on-demand audiovisual services originating from other Member States of the European Union, the measure referred to in the preceding paragraph is to be preceded by:
a) A request to the Member State where the service provider has its origin that it put an end to the situation; or
b) In the event that this has not been undertaken or in the event that the steps taken prove to be inadequate, notification to the European Commission and the Member State of origin as to its intention to take restrictive measures.
3 - In urgent cases, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may take restrictive measures without previously giving notification to the Commission and to other Member States of origin in accordance with the preceding paragraph.
4 - In the case foreseen in the preceding paragraph, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) shall notify the Commission and the Member State to whose jurisdiction the provider of on-demand audiovisual services is subject as to the restrictive measures, doing so without delay and indicating the grounds for its determination of the case as urgent.
5 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media)shall notify the member of Government responsible for the media as to any requests and notifications it executes pursuant to paragraph 2, and as to any requests and notifications it receives in respect of situations foreseen in the preceding paragraph.»
Article 4
Amendment to Law no. 8/2007 of 14
February Articles 22, 23 and 27 of the Statutes of Rádio e Televisão de Portugal, S.A., approved by Law No. 8/2007 of 14 February, are amended as follows:
«Article 22
[...]
1 - ...
a) ...
b) ...
c) ...
d) ...
e) To issue opinions on legislative initiatives affecting the public radio and television service;
f) [Former point e).]
g) To issue, after a hearing by the board of directors of Rádio e Televisão de Portugal, S.A., opinions on the creation of any entities having as their object oversight of the activities of the public radio or television service;
h) [Former point f).]
i) [Former point g).]
j) [Former point h).]
2 - ...
Article 23
[...]
1 - (Former body of the article.)
2 - Any absences of the members of the opinion council are to be justified to the president within eight days following their occurrence or termination of the circumstance of force majeure that gave rise thereto.
3 - The mandate of a member who is absent without justification on three occasions will be withdrawn.
4 - Lack of justification for absences is to be ratified in plenary session when such circumstance may entail withdrawal of mandate.
5 - In the event that the mandates of one or more of its members are withdrawn, the chairman of the opinion council shall, within 8 days, notify the entity responsible for election or appointment so that it may proceed and declare new members within 30 days.
Article 27
[...]
1 - ...
2 - ...
3 - ...
4 - The annual reports of the listener ombudsman and viewer ombudsman are to be submitted to the opinion council and to Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) on an annual basis, no later than 31 January, and published annually by the operators acting under the public radio and television concession on their websites or through any other suitable means.»
Article 5
Amendments to the Código da Publicidade (Advertising Code)
Article 8 of Código da Publicidade (Advertising Code), as approved by Decree-Law no. 330/90 of 23 October and as amended by Decree-Laws no. 74/93 of 10 March, by Decree-Laws no. 6/95 of 17 January and by Decree-Laws no. 61/97 of 25 March, by Law no. 31-A/98 of 14 July, by Decree-Law no. 275/98 of 9 September, by Decree-Law no. 51/2001 of 15 February and by Decree-Law no. 332/2001 of 24 December, Law no. 32/2003 of 22 August, by Decree-Law no. 224/2004 of 4 December, by Law no. 37/2007 of 14 August, and by Decree-Law no. 57/2008 of 26 March, is amended to read as follows:
«Article 8
[...]
1 - ...
2 - ...
3 - The separator referred to in the preceding paragraph consists, on the radio, of acoustic signals.»
Article 6
Systematic amendments
1 - The title of Law no. 27/2007 of 30 July is amended to be «Lei da Televisão e dos Serviços Audiovisuais a Pedido» (Television and On-demand Audiovisual Services Law).
2 - Chapter ii of Law no. 27/2007 of 30 July is amended so as to have the heading «Acesso à actividade de televisão» (Access to the television activity).
3 - Section iii of Chapter iv of Law no. 27/2007 of 30 July is amended so as to have the heading «Comunicações comerciais audiovisuais» (Audiovisual commercial communications).
4 - The following subsections are added to Section iii of Chapter IV of Law no. 27/2007 of 30 July:
a) Subsection I, with the heading «Publicidade televisiva e televenda» (Television advertising and teleshopping), which includes articles 40 to 40-C;
b) Subsection II, with the heading «Outras formas de comunicação comercial audiovisual» (Other forms of audiovisual commercial communication), which includes articles 41 to 41-D.
5 - Chapter V of Law No. 27/2007 of 30 July is amended so as to have the heading «Serviço público» (Public service).
Article 7
Application of the law in time
The provisions of Article 41-A of Law no. 27/2007 of 30 July, in the wording given to it by the present law, apply only to programmes which are produced subsequent to 19 December 2009.
Article 8
Repeal
The following are repealed:
a) Paragraph 2 of article 2, articles 85 and 89 and paragraph 2 of article 98 of Law no. 27/2007 of 30 July;
b) Paragraphs 1 to 4 of article 24 and articles 25 and 25-A of Código da Publicidade (Advertising Code) as approved by Decree-Law no. 330/90 of 23 October.
Article 9
Transitional provision
The rules governing non-concentration set out under Law no. 27/2007 of 30 July, as amended by the present law, shall be subject to review by Assembleia da República (Assembly of the Republic) following the cessation of analogue transmissions and according to the digital terrestrial television development plan.
Article 10
Republication
As an annex to the present law and forming an integral part hereof, Law no. 27/2007 of 30 July is hereby republished with its current wording.
Article 11
Entry into force
1 - The present law enters into force 30 days following its publication.
2 - The wording to points h), i) and p) of paragraph 1 of article 2 and articles 44 and 46 of Law no. 27/2007 of 30 July, only has effect from 1 January 2012.
Approved on 4 February 2011.
The President of Assembleia da República (Assembly of the Republic), Jaime Gama.
Promulgated on 18 March 2011.
Let it be published.
The President of the Republic, ANÍBAL CAVACO SILVA.
Approved on 23 March 2011. The Prime Minister, José Sócrates Carvalho Pinto de Sousa.
ANNEX
Law no. 27/2007 of 30 July
(Television and On-demand Audiovisual Services Law)
CHAPTER I
General Provisions
Article 1
Object
The purpose of this law is to regulate access to the television activity and the pursuit thereof, and also to regulate the offering of on-demand audiovisual services to the public, transposing Directive no. 89/552/EEC of the Council of 3 October, as amended by Directive no. 97/36/EC of the Parliament and of the Council of 30 June and by Directive no. 2007/65/EC of the Parliament and of the Council of 11 December, into the national legal order.
Article 1-A
Applicable regulation
1 - On-demand audiovisual services are also subject to the rules governing information society services and governing electronic commerce, as laid down in Decree-Law no. 7/2004 of 7 January, as amended by Decree-Law no. 62/2009 of 10 March, where appropriate to the nature thereof and provided that said rules do not conflict with the provisions of the present law.
2 - Notwithstanding the provisions of the present law, audiovisual commercial communications are additionally subject, mutatis mutandis, to the provisions of the Código da Publicidade (Advertising Code), as approved by Decree-Law no. 330/90 of 23 October and complementary legislation, as well as to the provisions of Law no. 37/2007 of 14 August and of Decree-Law no. 176/2006 of 30 August.
Article 2
Definitions
1 - For the purposes of this law:
a) «Television activity» means the activity consisting of the organisation, or selection and aggregation of television programme services for the purpose of their transmission and reception by the general public;
b) "Production prop" means an audiovisual commercial communication consisting of the inclusion of or reference to a product or service within a programme and provided free of charge.
c) "Self-promotion" means an audiovisual commercial communication broadcast by a television operator or a provider of on-demand audiovisual services regarding their own products and services, including television programme services, on-demand audiovisual services, directly associated programmes and products, as well as cinematographic and audiovisual works in which the operator has participated financially;
d) "Product placement" means an audiovisual commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof within a programme, in return for payment or for similar consideration;
e) "Audiovisual commercial communication" means the presentation of images with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal person pursuing an economic activity, including but not limited to television advertising, teleshopping, sponsorship, product placement, production props and self-promotion;
f) "Virtual audiovisual commercial communication" means an audiovisual commercial communication resulting from the substitution, by electronic means, of other commercial communications;
g) "Dominance" means the relationship existing between a natural or legal person and a company, through which, regardless of whether its place of residence or registration is in Portugal or abroad, the former is able to exercise, directly or indirectly, a dominant influence over the latter, whereas, dominance will be deemed to exist in any case when a natural or legal entity:
i) Holds a majority shareholding or a majority of voting rights;
ii) Is able to exercise the majority of voting rights under the terms of a shareholders' agreement; or
iii) Has power to appoint or remove the majority of the members of the administrative or supervisory boards;
h) "Creative work" means a cinematographic or audiovisual production based on structured creative elements, including, for the purpose of complying with the percentage limits set out in Section v of chapter iv of this law, long and short fiction films and animation, documentaries, films made for television and series made for television and also, for the same purposes, television reports, educational, musical, artistic and cultural programmes, provided that they are eligible for copyright protection;
i) "Independently produced work" means work which is produced by an independent producer and which meets all of the following requirements:
i) Ownership of the rights over the work produced by the independent producer, with a clear contractual definition of the type and duration of the broadcasting rights granted to the television operators;
ii) Work produced with creative autonomy and freedom in the form of development, particularly as regards the choice of studios, actors, media and distribution;
j) "European work" means a cinematographic or audiovisual production that meets the requirements set out in point n) of article 1 of Directive no. 89/552/EEC of the Council of 3 October, as amended by Directive no.97/36/EC of the Parliament and of the Council of 30 June and by Directive no. 2007/65/EC of the Parliament and of the Council of 11 December;
l) "Distribution operator" means the legal person responsible for the selection and aggregation of television programme services, as well as for their provision to the public, by means of electronic communications networks;
m) "On-demand audiovisual service provider» means the natural or legal person who has responsibility for the choice and organisation of the content of the audiovisual service and determines the manner in which it is organised;
n) "Television operator" means a legal person legally authorised to pursue the television activity, responsible for organizing television programme services;
o) "Sponsorship" means audiovisual commercial communication involving a contribution made by a public or private undertaking or natural person, other than the television broadcaster, on-demand audiovisual service provider or producer of audiovisual works, to the financing of television programme services or on-demand audiovisual services with a view to promoting its name, its trademark, its image, its activities or its products;
p) "Independent producer" means the legal person whose principal activity is the production of cinematographic or audiovisual works, provided that the following cumulative requirements are met:
i) Direct or indirect shareholding does exceed 25% where held by a television operator and does not exceed 50% where held by multiple television operators;
ii) No more than 90% of sales, on an annual basis, are made to the same television operator;
q) "Programme" means a set of moving images, with or without sound, constituting an individual item within a programming schedule of a television programme service or within a catalogue of an on-demand audiovisual service;
r) "Television advertising" means the audiovisual commercial communications broadcast within television programme services in return for payment or for similar consideration or broadcast for self-promotional purposes by a public or private undertaking or natural person in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations;
s) "On-demand audiovisual service" or "non-linear audiovisual media service" means the offer to the general public of a catalogue of programmes and of accompanying text content, specifically including subtitling and electronic programming guides which catalogue is selected and organised by a provider of on-demand audiovisual services for viewing by a user, at the moment chosen by him and upon his individual request with use of an electronic communications network within the meaning given by Law no. 5/2004 of February 10, which concept does not include; i) Any form of communication that is private in nature; ii) Audiovisual content generated by private users to be shared, preferentially, within groups with common interests; iii) Electronic versions of newspapers and magazines and complementary audiovisual content;
t) "Television programme service" means the sequence and uniform set of programming items provided by a television operator, organised with basis in a programming schedule;
u) "Telepromotion" means television publicity inserted during the interruption to a programme where products or services are presented by the programme presenter;
v) "Teleshopping" means the audiovisual commercial communications consisting of direct offers broadcast to the public with a view to supplying products or services in return for payment;
x) "Television" means the unencrypted or coded transmission of non-permanent images with or without sound over an electronic communications network, intended for simultaneous reception by the general public, which concept does not include:
i) Communications services to be received only upon individual request;
ii) The mere retransmission of third party broadcasting;
iii) The occasional transmission of events, by means of technical devices installed at places where such events take place, and intended for the public gathered therein.
2 - (Repealed)
Article 3
Scope of application
1 - The following are subject to the provisions of the present law:
a) Television programmes transmitted by operators pursuing the television activity under the jurisdiction of the Portuguese State;
b) On-demand audiovisual services made available by providers which undertake said provision under the jurisdiction of the Portuguese State.
2 - Television broadcasters and broadcasters of on-demand audiovisual services are considered as being under the jurisdiction of the Portuguese state where they meet the criteria laid down in article 2 of Directive no. 89/552/EEChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=389L0552&model=guichett of the Council of 3 October, as amended by Directive no. 97/36/EChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=397L0036&model=guichett of the Parliament and of the Council of 30 June and by Directive no. 2007/65/EChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=307L0065&model=guichett of the Parliament and of the Council of 11 December.
3 - The preceding paragraph is applicable, mutatis mutandis, to distributors.
Article 4
Transparency of ownership and management
1 - Shares representing the capital of television operators which are constituted in the form of a public limited company are to be registered.
2 - The shareholders of television operators, the composition of the administrative and management boards of television operators and the identification of the person responsible for giving guidance to and undertaking supervision of the content of their broadcasts are to be publicly disclosed on the website of the respective media organisations and are to be updated within seven days of any event occurring whereby:
a) Any shareholder reaches or exceeds 5%, 10%, 20%, 30%, 40% or 50% of the share capital or voting rights;
b) A shareholder reduces his stake to a value which is less than one of the percentage thresholds indicated in the preceding point;
c) There is change in the dominance of the television broadcaster; d) Any change occurs in the composition of the administrative and management boards or in the structure or responsibility governing the guidance and supervision of broadcast content.
3 - The reporting stipulated in the preceding paragraph shall contain, with such updates as are warranted:
a) The breakdown of the percentage shareholdings of the respective shareholders;
b) The identification of the entire chain of entities controlling a shareholding of at least 5% in the operators concerned; and
c) Indication of the shareholdings of said shareholders in other media organisations.
4 - Where no website is available, this information and the updating thereof, as referred to in paragraphs 2 and 3, is to be additionally reported by the operator responsible to Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), which will make said information available to the public.
5 - The provisions of paragraphs 2 and 3 apply, mutatis mutandis, to legal persons which are not corporations but which pursue the television broadcasting activity, including associations, cooperatives or foundations.
Article 4-A
Identification obligations
1 - Television operators, distribution operators and providers of on-demand audiovisual services shall disclose, so as to enable easy, direct and permanent access:
a) The respective names or company names;
b) The name of the director or person responsible for each service, where applicable;
c) The geographic address at which they are established;
d) Their means of contact, including telephone contacts and postal and electronic address;
e) The identification and contact details of the competent regulatory authorities.
2 - In the case of television programme services, a visual symbol is to be permanently displayed, except during advertising blocks, enabling identification of each service, whereas the information stipulated under the preceding paragraph is to be disclosed:
a) On the respective website, the address of which shall be disclosed at the beginning and end of each news service or, where television programme services do not include informative programming, during broadcasting at intervals not exceeding four hours;
b) Where available and insofar as it is feasible, within complementary services, such as teletext pages and electronic programme guides.
3 - With regard to on-demand audiovisual services, the information referred to in paragraph 1 is to be made available on the electronic pages which provide access to the respective programmes.
4 - Providers of on-demand audiovisual services are required to notify Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) by electronic means, as to the beginning and end of the activity of each of one its services, as to the items referred to in points a) to d) of paragraph 1 and any updates thereto.
5 - The notifications stipulated in the preceding paragraph are to be made no later than 10 working days following the occurrence of the event by which they are required, and will not be subject to any charges or fees.
Article 4-B
Competition, non-concentration and pluralism
1 - Television operators are subject to the general regime governing the assurance and promotion of competition.
2 - Concentration operations between television operators which are subject to the intervention of the authority regulating competition are to be submitted to a prior opinion of Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), which opinion will be binding where there is deemed to be a risk to free expression and to the exchange of different views and opinions.
3 - It is prohibited for any natural or legal person to hold, either directly or indirectly, including though a relationship of control, a number of licenses for national unrestricted free-to-air television programme services exceeding 50% of all the licenses granted to similar programme services in the same area of coverage.
4 - The practice of legal acts which entail changes to the control of providers pursuing the television activity under license are prohibited except where a period of not less than three years has elapsed following the original granting of the license, where a period of not less than two years has elapsed following modification of the approved project and where a period of not less than one year has elapsed following the most recent renewal; such acts are additionally subject to authorisation being given by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media).
5 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will decide thereon, subsequent to having heard interested parties and within a period of 30 working days following verification and consideration of the initial conditions determining the award of the title and the interests of the potential audience of the programme services provided, ensuring that the conditions which gave basis to the decision on the original project or on subsequent alterations are safeguarded.
6 - The provisions of the preceding paragraphs shall apply, mutatis mutandis, to legal persons which are not corporations, including legal persons which are associations, cooperatives or foundations and which pursue the television activity, whereas Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) shall, where the requisites for performance of the operation are fulfilled, undertake the respective alterations to the title under which pursuit of the activity is authorised.
Article 5
Public service
1 - The State shall guarantee the existence and operation of a public television service, under chapter V.
2 - The public television service may incorporate on-demand audiovisual services or other audiovisual services such as are necessary to achieve its purposes.
Article 6
Principle of cooperation
1 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will promote and encourage the adoption of co-regulation, self-regulation and cooperation mechanisms between the various television operators such as enable the accomplishment of the objectives set out in the following paragraph.
2 - The State, the public service concessionaire and the remaining television operators and providers of on-demand audiovisual services shall collaborate together in pursuit of the values of human dignity, the rule of law, democratic society and national cohesion, and in the promotion of the Portuguese language and culture, taking into account the special needs of certain categories of viewers.
Article 7
Coverage areas
1 - Coverage by television programme services may be on an international, national, regional or local level, according to whether they are intended to cover, respectively:
a) Predominantly the territory of other countries;
b) The national territory in general, including the Autonomous Regions;
c) A district or a group of bordering districts or a metropolitan area on the mainland, or a group of islands in the Autonomous Regions;
d) A municipality or a group of bordering municipalities and any adjacent areas, according to the technical requirements of coverage, on the mainland, or an island comprising several municipalities in the Autonomous Regions.
2 - The geographic area allocated to each television programme service of national scope is to be covered by the same programme and recommended signal, except where otherwise authorised by determination of Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), without prejudice to the use of additional coverage resources, where duly authorised.
3 - The determination as referred to in the preceding paragraph shall establish the hourly limit of broadcast interruptions up to a maximum of two hours per day, which may be extended in exceptional and duly substantiated situations, under the terms provided therein.
4 - The classifications referred to in this article are incumbent upon Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) and shall be established in the respective license or authorisation document, without prejudice to subsequent amendment at the request of interested parties and subject to the binding conditions governing pursuit of the activity, under article 21 hereof.
Article 8
Types of television programme services
1 - Television programme services may be general or thematic, and may be provided on a conditional access or a free-to-air basis; in this last case, television programme services may be unrestricted or subject to a subscription.
2 -Television programme services which comprise a variety of programming aimed at the general public are considered as being "general" television programme services.
3 - Television programme services which adhere to a programming model which is predominantly focused on specific audio-visual matters or subject areas, or which is targeted at specific segments of the public, are considered as being "thematic" television programme services.
4 - Self-promotion or teleshopping thematic television programme services shall not include any other conventional programme elements, such as news reports, sports, films, series or documentaries.
5 - Unrestricted free-to-air television programme services means programme services that are made publicly available but not in return for a consideration, and free-to-air television programme services subject to subscription means programme services that are made publicly available in return for a consideration in respect of the access to or use of the distribution infrastructure.
6 - Conditional access television programme services shall mean those that are made publicly available in return for a specific consideration, the amount due for the access to or use of the distribution infrastructure being so considered.
7 - The classifications referred to in this article are incumbent upon Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) and shall be established in the license or authorisation document, without prejudice to subsequent amendment at the request of interested parties and subject to the binding conditions governing pursuit of the activity, under article 21 hereof.
Article 9
Purposes of the television activity
1 - The following are deemed as being purposes of the television activity, according to the nature, subject-matter and coverage area of the television programme services made available:
a) To contribute towards public information, education and entertainment;
b) To promote exercise of the right to inform and to be informed, in a manner that is accurate and independent and without impediment or discrimination;
c) To promote citizenship and democratic participation as well as to respect political, social and cultural pluralism;
d) To spread and promote Portuguese culture and language, Portuguese creators, artists and scientists, as well as values that express the national identity.
2 - The purposes referred to in the preceding paragraph shall be taken into consideration by distribution operators in the process of selection and aggregation of television programme services made available to the public.
Article 10
Technical standards
The technical conditions governing pursuit of the television activity and the fees payable in respect of the allocation of rights of use of resources required for broadcasting are to be established under applicable legislation governing electronic communications.
CHAPTER II
Access to the television activity
Article 11
Requirements for operators
1 - The pursuit of the television activity consisting of the organisation of general or thematic informative programme services and having international, national or regional scope, under the terms of this law, by persons or undertakings other than companies or cooperatives whose primary object is the pursuit thereof is prohibited.
2 - The pursuit of the television activity consisting of the organisation of informative general or thematic programme services with local scope, under the terms of this law, by persons or undertakings other than companies or cooperatives whose primary object is the pursuit of the media activity is prohibited.
3 - Television operators which require licensing in order to pursue the television activity are required to have the following minimum levels of capital:
a) 5 000 000 (euros), in case of operators providing general television programme services of national or international coverage;
b) 1 000 000 (euros), in case of operators providing thematic television programme services of national or international coverage;
c) 100 000 (euros) or 50 000 (euros), depending upon whether operators provide television programme services of regional or local coverage, irrespective of the type of programming.
4 - Distribution operators of conditional access television programme services or of free-to-air television programme services subject to subscription which use the terrestrial spectrum are subject to the following minimum capital requirements:
a) 5 000 000 (euros), in case of networks which cover the entire national territory, including the Autonomous Regions;
b) 500 000 (euros), in case of networks which cover a group of districts on the mainland or a group of islands in the Autonomous Regions, or an island with several municipalities, or a metropolitan area;
c) 100 000 (euros) in case of networks which cover a municipality or a group of neighbouring municipalities.
5 - Providers which engage, on a non-profit basis, solely in the provision of television programme services which are educational or cultural or which provide scientific dissemination are exempt from the provisions of paragraphs 2 and 3, which providers may take the form of an association or foundation.
6 - The share capital of television operators is to be fully paid-up no later than 30 days following notification of the decisions referred to in article 18, at the risk of cancellation of the licence or authorisation.
Article 12
Restrictions
1 - Political parties and associations, trade unions, employer and professional associations and public professional associations are prohibited from directly or indirectly pursuing or financing the television activity, except where such activity is operated exclusively over the Internet or using restricted access channels and where it consists of the organisation of programme services of a doctrinal, scientific or institutional nature.
2 - Without prejudice to the provisions of article 5, the State, Autonomous Regions, local authorities, and associations thereof, are prohibited, whether directly or through state or regional public companies, municipal, metropolitan or inter-municipal companies, from pursuing or financing the television activity, except where such activity is operated exclusively over the Internet and where it consists of the organisation of programme services of a scientific or institutional nature.
Article 13
Types of access
1 - The television activity is subject to licensing, granted by means of public tender to be launched upon decision of the Government, where use is made of terrestrial spectrum designated to broadcasting under the National Table of Frequency Allocations and where it consists of:
a) The organisation of unrestricted free-to-air television programme services;
b) The selection and aggregation of conditional access television programme services or of free-to-air television programme services subject to subscription.
2 - In the case of unrestricted free-to-air television programme services, licenses shall be granted on an individual basis, according to the number of television programme services provided by each television operator.
3 - In the case of conditional access television programme services or of free-to-air television programme services subject to subscription, two authorising documents will be granted pursuant to said tender, one of which documents confers rights of use of the relevant radio frequencies or groups of frequencies, and the other document in respect of the selection and aggregation of television programme services to be provided by a distribution operator.
4 - The television activity is subject to authorisation, upon the request of interested parties, where such activity consists of the organisation of television programme services which:
a) Do not use the terrestrial spectrum intended for broadcast purposes under the National Table of Frequency Allocations;
b) Are intended to integrate the offer of a distribution operator holding a prior licence for the pursuit of the television activity, pursuant to point b) of paragraph 1.
5 - Authorisations will be granted on an individual basis, according to the number of television programme services to be provided by each operator under the jurisdiction of the Portuguese State.
6 - The preceding paragraphs do not apply to the public television service, pursuant to chapter V.
7 - Licenses and authorisations for television activity are non-transferable.
8 - The television activity is subject to registration, pursuant to article 19, where it consists of television programme services broadcast exclusively over the Internet and not retransmitted by other networks.
Article 14
Frequency planning
Radio spectrum planning for the exercise of the television activity is incumbent upon the national regulatory authority for communications, having heard Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media).
Article 15
Public tender for unrestricted free-to-air television programme services
1 - Without prejudice to procedures necessary for the allocation of rights of use of frequencies, as are incumbent upon the national regulator authority for communications pursuant to Law no. 5/2004 of 10 February, the public tender for the licensing of the television activity consisting of the organisation of unrestricted free-to-air television programme services will be launched by administrative rule of the member of the Government responsible for the media area, which administrative rule is to set out the respective object and regulation.
2 - Requirements in respect of the coverage area, types of programme services and the number of hours of the respective broadcasts are to be expressly reasoned in the regulation, in light of the public interest which such requirements seek to protect.
3 - The regulation will set out the conditions which determine the admissibility of applications, as well as the documentation to be attached thereto, in order to enable verification that applicants and projects are compliant with legal and regulatory requirements, which requirements include:
a) Requirements for operators and restrictions applicable to the pursuit of the activity;
b) Rules governing the concentration of media ownership;
c) Correspondence between projects and the object of the tender;
d) The economic and financial feasibility of projects;
e) Coverage obligations and the respective scheduling;
f) The sufficiency of assigned human and technical resources;
g) Proof of compliance with tax and social security obligations, whereas presentation of the respective certificate is waived pursuant to Decree-Law no. 114/2007 of 19 April.
4 - For the purpose of ranking the different applications submitted to the tender, and where general television programme services of a national scope are concerned, the following criteria shall also be taken into account:
a) The contribution of each project towards the enhancement of the television offer in the area to be covered, which contribution is to be evaluated with regard to the guarantees provided to uphold pluralism and independence in respect of political and economic powers, with regard to the emphasis given to information, to the safeguarding of constitutional rights of journalists, to the consistency of general programming guidelines with the respective editorial statute and to the suitability of projects in terms of the social-cultural reality which they address;
b) The contribution of each project towards the diversification of the television offer in the area to be covered, which contribution is to be evaluated with regard to their originality, investment in innovation and creativity, and the guarantee of rights of access by minorities and under-represented views;
c) The contribution of each project towards the dissemination of creative and independent European and original Portuguese language works;
d) Compliance with legal rules and with the commitments entered into during the continuance of the previous licensed television activity;
e) General guidelines of human resources policy, particularly as regards recruitment, training and professional qualification plans.
5 - For the purpose of ranking different applications submitted to the tender, and where thematic, regional or local scope television programme services are concerned, the criteria laid down in the preceding paragraph shall be taken into account, where applicable.
6 - The regulation will set out the criteria of ranking provided for in paragraphs 4 and 5 and assign a relative weight thereto.
7 - The regulation will establish the amount of the guarantee deposit and the respective release scheme according to principles of appropriateness and proportionality in terms of compliance with obligations which are to be safeguarded, taking into account the types and territorial scope of television programme services to be licensed.
8 - The tender specifications, which will include the obligations and conditions governing pursuit of the activity, shall be available from the date on which the administrative rule launching the tender is published until the date and time of the opening of the corresponding public act, under the terms defined therein.
9 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) is to issue a prior opinion on the object of the tender, and on the respective regulation and specifications, within 20 working days following the reception thereof.
10 - The deadline stipulated in the preceding paragraph having expired, the draft regulation will be submitted to public examination, for a period of 30 days, and for said purpose will be published in II Series of Diário da República (Official Gazette) and on the website of the responsible government department.
Article 16
Public tender for conditional access television programme services or
free-to-air television programme services subject to subscription
1 - The public tender for the granting of rights of use of frequencies and of licenses for the pursuit of a television activity that consists of the selection and aggregation of conditional access television programme services or free-to-air television programme services subject to subscription will be launched pursuant to joint administrative rule of the members of the Government responsible for the media and for electronic communications, which administrative rule shall include the respective object and regulation.
2 - Requirements in respect of the coverage area and type of programme services to be provided are to be expressly reasoned in the text of the regulation, in light of the principles of optimal radio spectrum management and the public interests which such requirements seek to protect.
3 - The regulation will set out the conditions which determine the admissibility of applications, as well as the documentation to be attached thereto, which conditions are to focus specifically on the economic and financial feasibility of projects, coverage obligations and the respective scheduling, correspondence between applicants and projects, on the one hand, and the scope of the tender and legal sector requirements, on the other, whereas applicants who are non-compliant with regard to their tax obligations or who are indebted to social security are held ineligible to participate in the tender.
4 - For the purpose ranking different applications submitted to the tender, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) and the national regulatory authority for communications, according to their respective assignments, shall jointly consider the following criteria:
a) The economic and financial costs of projects;
b) The contribution of projects towards the development of the information society, the enhancement of the television offer, the production of European works, and the dissemination of creative works having original production in the Portuguese language.
5 -The regulation will set out the criteria of ranking provided and assign a relative weight thereto.
6 - The regulation will establish the amount of the guarantee deposit and the respective release scheme according to principles of appropriateness and proportionality in terms of compliance with obligations which are to be safeguarded.
7 - The tender specifications, which will include the obligations and conditions governing pursuit of the activity, shall be available from the date on which the administrative rule launching tender is published until the date and time of the opening of the corresponding public act, under the terms defined therein.
8 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) is to issue a prior and mandatory opinion on the object of the tender, and on the respective regulation and specifications, within 20 working days following the reception thereof.
9 - The deadline stipulated in the preceding paragraph for consultation on the draft regulation having expired, the draft regulation will be submitted to public examination, for a period of 30 days, and for said purpose will be published in II Series of Diário da República (Official Gazette) and on the website of the responsible government departments.
Article 17
Examination of applications
1 - The licensing or authorisation applications as referred to in point a) of paragraph 1 and in paragraph 4 of article 13 hereof will be examined by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), which, for this purpose, will seek an opinion from the national regulatory authority for communications as to the technical conditions of the applications.
2 - The licensing applications provided for in point b) of paragraph 1 of article 13 will be examined by the national regulatory authority for communications.
3 - In respect of the applications as referred to in the preceding paragraph, the national regulatory authority for communications will submit to verification by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) as to compliance with the conditions of eligibility of applications insofar as these are within its area of competence.
4 - Authorisation applications are to be accompanied by such documents as are stipulated by administrative rule issued by the member of the Government responsible for the media area.
5 - The regulatory body responsible for the examination will notify applicants, within 15 days from the reception of applications, as to any irregularities detected therein, which irregularities are to be corrected within the ensuing period of 15 days.
6 - Applications which fail to meet the conditions of eligibility laid down in the administrative rule by which the tender is opened will be rejected by the competent regulatory authority upon reasoned decision.
7 - Such applications as are deemed eligible by the competent regulatory authority, subsequent to the rectification of any irregularities therein, will be subject to a decision to grant or deny the requested qualifying documents within 90 days, in the case of licensing applications, or within 30 days, in the case of authorisation applications.
Article 18
Granting of licenses or authorisations
1 - It is incumbent upon Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) to grant, renew, amend or revoke licenses or authorisations for the television activity.
2 - Licensing for the television activity consisting of the provision of general television programme services of a national scope is subject to the condition that coverage comprises the entire national territory, including the Autonomous Regions.
3 - Decisions to grant or to deny licensing or authorisations are to be duly reasoned by reference to the fulfilment of eligibility conditions and to each of the ranking criteria referred to in articles 15 and 16, as well as to issues raised in hearing interested parties.
4 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may not reject an authorisation application except upon the following grounds:
a) Compliance of operators and respective projects with applicable legal obligations;
b) Compliance of the applicant as regards tax and social security obligations;
c) The technical quality of the project submitted.
5 - The authorising documents for the television activity will set out the obligations and conditions to which programme services are subject, the classification of television programme services and also the obligations and scheduling of the respective coverage.
6 - The decisions as referred to in paragraph 3 shall be notified to interested parties, published in II Series of Diário da República (Official Gazette) and made available on the website of Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), attaching the authorising documents stating the purposes and obligations to which licensed or authorised operators are subject.
7 - It is incumbent upon the national regulatory authority for communications to grant, renew, amend or revoke the authorising document by which allocation is made of the rights of use of radio frequencies or groups of frequencies intended for the provision of unrestricted free-to-air television programme services, free-to-air television programme services subject to subscription and conditional access television programme services, pursuant to Law no. 5/2004 of 10 February, without prejudice to the licensing regime established herein.
Article 19
Operator registration
1 - It is incumbent upon Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) to organise a register of television and distribution operators and of the respective television programme services, in order that details of their ownership, organisation, operation and obligations be made public, and also to protect the designation thereof.
2 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will carry out, of its own motion, the registration and endorsements that result from its licensing and authorisation activity.
3 - Television and distribution operators shall provide Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) with all items and details as are necessary for the purposes of registration, and shall update them, as defined in regulatory decree.
4 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may, at any time, conduct audits in order to inspect and verify such details and items as are provided by television and distribution operators.
Article 20
Commencement of broadcasting
Television operators shall commence broadcasting of authorised or licensed television programme services within 12 months of the date of the final decision as to the allocation of the corresponding authorising title.
Article 21
Compliance with the approved project
1 - Pursuit of the television activity is subject to compliance by the operator with the conditions and terms of the licensed or authorised project, whereas any amendment thereto shall be subject to approval by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), which shall state its position thereon within 90 days.
2 - The television programme service may be altered on request only where a period of three years has elapsed since the granting of the respective licence or where a period of one year has elapsed since the granting of the respective authorisation.
3 - Any request for alteration is to be reasoned, taking into account, in particular, the fundamental legal conditions which gave basis to the granting of the licence or authorisation, and also taking into account the development of the market and the implications for the potential audience of the programme service under consideration.
Article 22
Term of licences or authorisations
1 - Licences or authorisations for the exercise of the television activity are to be issued for a period of 15-years and will be subsequently renewable for equal periods.
2 - Applications to renew licenses or authorisations are to be submitted to Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) 240 to 180 days prior to the expiry of the respective period of validity.
3 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will decide on the renewal of licenses or authorisations no later than 90 days prior to the expiry of the respective period of validity.
4 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will, when renewing licenses or authorisations, enhance the obligations to which operators are subject thereunder, in light of the evolution occurring in the audiovisual field and in order that such obligations remain fitting with the legal provisions then in force.
5 - Renewal of licenses or authorisations is to be granted only where compliance of the respective operators with binding obligations and conditions is acknowledged.
Article 23
Interim evaluation
1 - At the end of the 5th and 10th year following the granting of licenses and authorisations, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will prepare and make public, following the hearing of interesting parties, a report assessing compliance with the obligations and conditions to which the operators are subject, and shall issue fitting recommendations based on said analysis.
2 - The assessment reports referred to in the preceding paragraph, as well as the assessment report in respect of the last five years of validity of the licenses and authorisations, are to be taken into account in the decision on their renewal.
Article 24
Extinction and suspension of licenses or authorisations
1 - Licences or authorisations shall cease to exist on expiry of their term or where they are revoked, under the terms of the law.
2 - Licences and authorisations, as well as programmes, may be suspended in the situations and for the purposes foreseen in articles 77, 81 and 85.
3 - The revocation and suspension of licenses and authorisations are incumbent on the entity responsible for the granting thereof.
CHAPTER III
Distribution of television programme services
Article 25
Distribution operators
1 - In organising and presenting the respective television offer, distribution operators shall give priority, successively, to television programme services originally in the Portuguese language having general content, having general information contents, or of a scientific, educational or cultural nature, taking into account the scope of coverage and access conditions.
2 - Operators of electronic communications networks used in the television activity are to provide, following a decision issued by the national regulatory authority for communications pursuant to paragraphs 1 and 2 of article 43 of Law no. 5/2004 of 10 February, the transport of television programme services specified by the Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) under point s) of paragraph 3 of article 24 of Law no. 53/2005 of 8 November.
3 - For the purposes of the preceding paragraph, television operators responsible for the organisation of the television programme services referred therein are to provide the respective signal.
4 - The national regulatory authority for communications, pursuant to paragraph 3 of article 43 of Law no. 5/2004 of 10 February, may determine appropriate remuneration in respect of the transport obligations so imposed.
5 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may determine, in a proportionate, transparent and non-discriminatory manner, appropriate remuneration in respect of the obligations of delivery under paragraph 3.
6 - Distribution operators and operators of electronic communications networks involved in the provision of television programme services are required to provide network and distribution capacity to regional and local television programme services, as well as to the broadcast of educational or cultural activities, taking into account the characteristics of the composition of the offer and the technical and market conditions as assessed at any given time by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) in the context of authorisation procedures, having heard, where it sees fit, Autoridade da Concorrência (Competition Authority) or the national regulatory authority for communications.
7 - Any alteration to the composition of the offer of distributed television programme services or to the respective access conditions shall take into account the obligations of diversification and pluralism and respect of consumer rights.
8 - Irrespective of the provisions of the preceding paragraph, consumers are to be given 30 days prior notice as to any alteration to the contracted conditions.
9 - Notices given as stipulated in the preceding paragraph shall make note of the option to cancel contracts in the event that such alterations affect the composition or price of the offer of distributed television programme services.
10 - The distribution operators are to have access, subject to market uses in accordance with competition rules, to television programme services, according to transparent, reasonable and non discriminatory conditions, with a view to their distribution.
11 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may, pursuant to its Statutes, adopt decisions which ensure compliance with the provisions of the present article.
CHAPTER IV
Programming and information
SECTION I
Freedom of programming and information
Article 26
Autonomy of operators
1 - Freedom of expression of thought through television programme services and on-demand audiovisual services constitutes part of the fundamental right of citizens to free and pluralistic information, which is essential to democracy and to the social and economic development of Portugal.
2 - Except in the cases foreseen under this law, pursuit of the television activity and on-demand audiovisual services is based on the freedom of programming, whereby neither the Public Administration nor any sovereign body, with the exception of the law courts, may prevent, limit or impose the broadcast of any programmes.
Article 27
Restrictions on the freedom of programming
1 - The programming of television programme services and of on-demand audiovisual services shall respect human dignity and shall respect fundamental rights, freedoms and guarantees.
2 - Television programme services and on-demand audiovisual services shall not, through the programming which they broadcast, incite racial, religious, or political hatred or hatred based on colour, ethnic or national origin, gender, sexual orientation or disability.
3 - The broadcasting of programmes which are likely to cause obvious and serious harm to the free personality development of children and adolescents, including programmes which contain gratuitous violence, and in the case of the unrestricted access programme service, programmes which contain pornography, are prohibited.
4 - The television broadcast of any other programme which is likely to have an adverse effect on the development of children or adolescents is only to be broadcast while permanently displaying an appropriate visual symbol and only between 10:30 p.m. and 06.00 a.m.
5 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will give television operators incentive to formulate a common television programme rating system which establishes a set of symbols to identify target age groups according to programme contents and which observes, with respect to the exhibition of cinematographic works and videos, the ratings of the Comissão de Classificação de Espectáculos (The Portuguese Board of Classification).
6 -Broadcasts in conditional access television programme services are exempt from the provisions of paragraphs 4 and 5.
7 - The provisions of the above paragraphs apply to all programming elements, including advertising and messages, extracts or images of self-promotion, and apply also to teletext services and electronic programming guides.
8 - Programming elements with the characteristics referred to in paragraphs 3 and 4 may be broadcast as part of any news services where they have journalistic relevance and are presented with respect for the ethical standards of the profession and are preceded by a warning as to their nature.
9 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) shall define and make public the criteria for assessing non-compliance with paragraphs 3 and 4, which criteria shall be objective, fitting, necessary and proportional to the objectives pursued.
10 - The programmes of on-demand audiovisual services which are likely to cause obvious and serious harm to the free personality development of children and adolescents, including programmes having pornographic content, may only be made available provided that sufficient technical features are adopted so as to prevent access to such content by children and adolescents.
11 - Television operators and providers of on-demand audiovisual services may adopt codes of conduct which respond to the requirements set out in the present Article, with consultation, in the case of television operators, of their editorial boards, in the context of their assignments.
Article 28
Restrictions on the freedom of retransmission
The provisions of paragraphs 1 to 3 and of paragraph 7 of the preceding article apply to the retransmission of television programme services in the cases and according to procedures provided for in article 86.
Article 29
Programme announcements
1 - Television operators are required to provide information, a reasonable time in advance and in a manner that is suitable for informing the public, as to the contents and alignment of television programme services programming for which they are responsible.
2 - Television operators may not alter announced programmes, or the scheduled duration and broadcast time thereof, less than forty-eight hours in advance thereof.
3 - The stipulation of the preceding paragraph may be waived where the nature of broadcast events is of sufficient importance, in light of a need to provide informative coverage of unforeseen situations or in cases of "force majeure".
4 - Programming alterations referred to in paragraphs 2 and 3 shall be communicated to the public in the programme service concerned, regardless of when such alterations take place and regardless of the respective reasons.
5 - Programming announcements provided with respect to television programme services broadcast in various media services or bodies are to be accompanied by the identifying symbol referred to in paragraph 4 of article 27, which information is to be provided by the operator responsible.
Article 30
Mandatory broadcasts
1 - Announcements whose broadcast is requested by the President of the Republic, the President of Assembleia da República (Assembly of the Republic) and by the Prime Minister are to be broadcast through the television public service, and shall be carried out with due prominence and with the utmost urgency.
2 - In the event of a declared state of siege or state of emergency, the obligation set out in the preceding paragraph shall also apply to other television operators.
Article 31
Political propaganda
Without prejudice to chapter VI, television operators, distributors and providers of on-demand audiovisual services are prohibited from granting broadcasting time to political propaganda.
Article 32
Acquisition of exclusive rights
1 - Any acquisition by a television operator of exclusive rights to the transmission of events of a political nature shall be deemed null and void.
2 - Where television operators broadcasting on a conditional access basis or without national coverage acquire exclusive rights to the full or partial transmission, via live or delayed coverage, of other events deemed to be of general public interest, the holders of said television rights will be required to grant access to such transmissions to other operators which are interested in the transmission thereof and which broadcast on a free-to-air basis with national coverage using terrestrial spectrum, on non-discriminatory terms and according to prevailing market conditions.
3 - Where there is no agreement between the holder of television rights and other operators interested in the transmission of the event, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may, upon request of any of the parties involved, conduct binding arbitration.
4 - The events referred to in the preceding paragraphs and the conditions governing their respective transmission shall be included in a list to be published in II Series of Diário da República (Official Gazette) no later than 31 October every year by the member of the Government responsible for the sector, having heard Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), without prejudice to the publication of exceptional endorsements in case subsequent and unforeseen facts of the same nature take place.
5 - Holders of exclusive rights to the transmission of any events shall provide operators providing international broadcasts with the respective signal, on a live or delayed basis and with use restricted to such broadcasts under conditions to be defined by decree-law that shall also establish criteria for remuneration in respect of such provision; where there is no agreement between interested parties, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will conduct binding arbitration.
6 - Television operators which are subject to the present law are prohibited from holding exclusive rights on terms by which a substantial proportion of the public of another Member State of the European Union are prevented from viewing events included in lists referred to in paragraph 8 on free-to-air television under the conditions established therein.
7 - Non-compliance with the provisions of paragraphs 2 or 6 will not be subject to penalty where the holder of exclusive rights demonstrates the impossibility of fulfilling the obligations provided for therein.
8 - For the purposes of paragraph 6, the definitive list of measures taken by Member States, as published in the Official Journal of the European Union, will be published in II Series of Diário da República (Official Gazette) upon the initiative of the member of the Government responsible for the media sector.
Article 33
Right to informative extracts
1 - The persons responsible for conducting performances or other public events taking place on national territory, as well as holders of exclusive rights over such performances or events, may not oppose the broadcasting of short extracts thereof, where of an informative nature, by programmes provided by any television broadcasters, national or otherwise.
2 - For the exercise of the right to information provided for in the previous paragraph, operators may use the signal transmitted by holders of exclusive rights, bearing only the costs that may result from the respective provision, or may alternatively resort to use of their own technical resources, under the legal terms that ensure media access to public places.
3 - Where a broadcaster or provider under the jurisdiction of the Portuguese State holds exclusive broadcasting rights in the national territory in respect of events occurring in the territory of another Member state of the European Union, it shall provide other national operators which are interested in broadcasting short and informative extracts of such events with access to the respective signal.
4 - Notwithstanding agreement providing for different uses, the extracts referred to in paragraphs 1 and 3 shall:
a) Be limited in duration to the minimum strictly necessary to enable perception of the essential content of the events in question, taking into account the nature of the events and provided that this does not exceed ninety seconds;
b) Have their broadcast limited to regular programmes of an informative nature;
c) Be broadcast within thirty-six hours of the event taking place, except where subsequent inclusion in reports of current events is justified by the purpose of the information being covered;
d) Identify the source of the images, where they are broadcast using a signal transmitted by the holder of exclusive rights.
5 - Except where specific agreement is made otherwise, short extracts of an informative nature relating to performances or other public events which are subject to exclusive rights may not be used in on-demand audiovisual services except when included in programmes previously broadcast by the same provider in television programme services.
SECTION II
Operators' obligations
Article 34
General obligations of providers and operators
1 - All television operators shall guarantee in their programming, namely by means of self-regulatory practices, adherence to broadcasting ethics, ensuring respect for human dignity, for fundamental rights and other constitutional values, especially the personality development of children and adolescents.
2 - All television operators which operate general television programme services of national coverage are subject to the following obligations:
a) To provide varied and plural programming, including during peak audience periods;
b) To broadcast information that is pluralist, accurate and independent;
c) To guarantee programming and information that is independent from political and economic powers;
d) To issue such announcements as referred to in paragraph 1 of article 30, in the event of a declared state of siege or of emergency;
e) To guarantee the right to broadcast time during periods of election campaigning, as provided for in the Constitution and in the law;
f) To guarantee the right to reply and to rectification as provided for in the Constitution and in the law;
g) To broadcast creative European works, specifically in the Portuguese language, and to participate in the development of their production, as provided for in the law.
3 - Subsequent to consulting Instituto Nacional para a Reabilitação (National Institute for Rehabilitation), other organisations representing people with disabilities, television operators and providers of on-demand audiovisual services, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will establish a set of obligations in respect of accessibility of television programme services and on-demand audiovisual services to persons with special needs; the establishment of such obligations will be based on a multi-year plan that provides for gradual compliance therewith, taking into account the technical and market conditions which are deemed as prevailing at any given moment, with a view, in particular, to the nature of the service, the use of subtitling, sign language interpretation, audio description or other techniques deemed necessary, as well as the availability of easily understandable navigation menus.
4 - In addition to the provisions of points a) to d) and point f) of paragraph 2, the following are obligations applicable to general television programme services of regional or local scope:
a) To extend television programming to content of a regional or local nature;
b) To broadcast information that is of specific interest given the geographic scope of its audience;
c) To promote the characteristic values of the regional or local cultures.
5 - The provisions of points a), b) and g) constitute obligations of thematic programme services, according to their nature, and the provisions of points c) and f) of paragraph 2 constitute obligations of thematic programme services, regardless of their nature.
Article 35
Editorial responsibility and autonomy
1 - Every television programme service shall have a person responsible for providing guidance and supervision of broadcast contents.
2 - Every television programme service which includes informative programming shall have a head of information.
3 - Each provider of on-demand audiovisual services shall have a person who is to be responsible for the selection and organisation of the catalogue of programmes.
4 - The television operator is charged with the appointment and the dismissal of the person responsible for the informative content of television programmes, after consulting the editorial board.
5 - The requirement to conduct a prior hearing of the editorial board is waived in respect of the appointment of the first person responsible for the informative content of each programme service and in respect of programme services which are doctrinal or denominational in nature.
6 - The management posts of the information area and the head thereof are to be exercised with editorial autonomy, whereby the television operator is prohibited from interfering in the production of content which is informative in nature and is further prohibited from interfering in the manner in which such content is presented.
7 - As an exception, the provisions of the preceding paragraph do not apply to guidelines which are aimed at ensuring strict observance of legal provisions breach of which would result in the television operator being held responsible for a criminal or administrative offence.
Article 36
Editorial statute
1 - Every television programme service shall adopt an editorial statute which defines, in a clear and detailed manner, binding guidelines and objectives, including a commitment to respect the rights of viewers, as well as the deontological principles of journalists and professional ethics.
2 - The editorial statute is to be drawn up by the person responsible, as referred to in the preceding article, having consulted the editorial board, subject to the approval of the owner, and is to be submitted to Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) no later than 60 days subsequent to the day on which broadcasts commence.
3 - Any amendments to the editorial statute arte likewise subject to the procedure laid down in the preceding paragraph.
4 - The editorial statute of television programme services shall be made available by any means appropriate for its publication.
Article 37
News services
General television programme services shall broadcast regular news services prepared by journalists.
Article 38
Editorial board and journalists' right to participation
Television programme services with more than five journalists shall be provided with an editorial board, elected according to the procedure and with the areas of competence defined by law.
Article 39
Number of broadcasting hours
1 - Licensed television programme services are required to broadcast programmes for at least six hours each day.
2 - Advertising and teleshopping programmes, as well as broadcasts of fixed or merely repetitive images, are not considered when calculating the number of hours broadcast for the purposes of the limit established in the preceding paragraph, without prejudice to paragraph 4 of article 8.
SECTION III
Audiovisual commercial communications
SUBSECTION I
Television advertising and teleshopping
Article 40
Time allotted to television advertising and teleshopping
1 - Broadcasting time allotted to television advertising and teleshopping between two-hour periods may not exceed 10% in the case of conditional access television programme services and may not exceed 20% in the case of free-to-air television programme services, whether unrestricted or subject to subscription.
2- The limits established in the preceding paragraph do not apply to self-promotions, telepromotions and blocks of teleshopping, and do not apply to the promotion of associated products, including where not directly related to the programmes of the television operators.
3 - Blocks of teleshopping are to have a minimum uninterrupted duration which is not less than fifteen minutes.
Article 40-A
Identification and separation
1 - Television advertising and teleshopping shall be readily identifiable as such and clearly distinguished from other programming.
2 - The distinction required under the preceding paragraph is to be effected:
a) Between programmes and during programme breaks, through the insertion of optical and acoustic separators at the beginning and end of each break, which separator at the beginning of each break is to contain, in a manner that is perceptible to viewers and as appropriate, the word 'Publicidade' (Advertising) or ' Televenda' (Teleshopping);
b) With use of a split screen, by demarcating an area on the screen, never more than a quarter part thereof, clearly separated from the remaining area and identified in a manner that is perceptible to viewers, containing the word 'Publicidade' (Advertising).
Article 40-B
Insertion
1 - Television advertising and teleshopping may be inserted provided that such insertions do not prejudice the integrity of the programmes, are in keeping with the natural breaks of programmes as well as their duration and nature, and provided that they do not infringe the rights of any holders:
a) Between programmes and in programme breaks;
b) Using the full screen or part thereof.
2 - Insertion of television advertising and teleshopping entailing an increase in sound volume compared to that applied to remaining programming is prohibited.
3 - The following are prohibited:
a) Teleshopping using a split screen;
b) Teleshopping during children's programmes and during the fifteen-minute periods immediately preceding and following the broadcast of children's programmes;
c) Split-screen television advertising during news programs and political information programs, children's programmes and programmes providing broadcast of religious services;
d) Split-screen television advertising during the broadcast of creative works and during debate or interview programmes.
4 - Transmission of news, political information programmes, cinematographic works and films made for television, excluding series, serials and documentaries may be interrupted by television advertising and/or teleshopping once for each scheduled period of at least 30 minutes.
5 - The transmission of children's programs may be interrupted by television advertising once for each scheduled period of at least thirty minutes provided that the scheduled duration of the programme exceeds thirty minutes.
6 - The broadcast of religious services may not be interrupted by the insertion of television advertising and/or teleshopping.
7 - Isolated messages of television advertising and teleshopping, except where presented in the transmission of sports events, may not be inserted other than in exceptional circumstances.
Article 40-C
Telepromotion
1 - Telepromotion is only admissible in light entertainment programmes which have the nature of competitions or similar.
2 - Viewers are to be informed of the existence of telepromotion at the beginning and end of programmes that make use of this form of advertising.
3 - Telepromotion is to be immediately preceded by an optical or acoustic separator and accompanied by a symbol which signals its commercial nature.
SUBSECTION II
Other forms of audiovisual commercial communication
Article 41
Sponsorship
1 - Sponsored television programme services and on-demand audiovisual media services, as well as the respective programmes, will be clearly identified as such by the name, logo or other distinguishing symbol of the sponsor of its products or of its services.
2 - Programmes which are sponsored are to be identified additionally at the beginning, as they restart and at the end of the programme, which indication may also be made cumulatively at other points in time, provided that the integrity of the programmes is not undermined, taking into account the breaks, their duration and nature, and provided that this is done in such a way as does not infringe the rights of any holders.
3 - News services and political information programmes may not be sponsored.
4 - The content of a sponsored television programme service, on-demand audiovisual service or programme or, in the case of television programme services, its programming, may under no circumstances be influenced in such a way that affects its editorial responsibility and independence.
5 - Sponsored programme services or programmes, as well as the identification of the respective sponsors, may not directly encourage the purchase or rental of products or services of the sponsor or of third parties, including through specific promotional references to such goods or services.
Article 41-A
Product placement and production props
1 - Product placement is prohibited except in cinematographic works, films and series made for television programme services or on-demand audiovisual services, sports programmes and light entertainment programmes.
2 - Product placement in children's programmes is prohibited.
3 - The content of programmes which contain product placement and, in the case of television programme services, their scheduling shall not be influenced in any such way as impacts their responsibility and editorial independence.
4 - Programmes which contain product placement shall not directly encourage the purchase or rental of products or services, in particular by making special promotional references to such products or services.
5 - Product placement shall not give undue prominence to products, services or trademarks, specifically where the reference made is not justified on editorial grounds or where such reference is likely to mislead the public with respect to their nature, or by the recurrent form in which such items are presented or shown.
6 - When produced or commissioned by the television operator, by the provider of on-demand audiovisual services or by an affiliated thereof, programmes containing product placement shall be appropriately identified at the start and the end of the programme, and when a programme resumes after an advertising break.
7 - Production props may be provided to any programme when the products or services used are of no significant commercial value, subject to the provisions of paragraphs 3 and 6.
8 - The presentation, during the exhibition of children's programmes, of any type of commercial messages which may impair the physical and mental development of minors is prohibited, which commercial messages include those related to food and beverages containing nutrients and substances with a nutritional or physiological effect, excessive intakes of which in the diet are not recommended.
9 - The use of production props where the goods or services used have significant commercial value is subject to the rules governing product placement, including those rules referring to administrative offenses.
10 - Significant commercial value is to be determined by agreement made between the television operators and the providers of on-demand audiovisual services, which agreement shall be subject to ratification by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media).
11 - In the event that there is no agreement, as referred to in the preceding paragraph, or where there is a lack of subscription to such an agreement, significant commercial value will be determined by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), following a prior hearing of the operators and providers of the sector, and shall, in any event, be based on the commercial value of products or services involved and the publicity value corresponding to the duration of broadcasting during which the product or service is commercially identifiable, particularly through the display of the brand, in addition to the time given to its identification immediately preceding or subsequent to the programme, according to the highest television advertising price rate applying on the date on which the programme is first broadcast or is first made available on demand.
Article 41-B
Virtual audiovisual commercial communications
1 - Virtual audiovisual commercial communications may not be inserted except where commercial communications previously existed and provided that they are not given greater prominence and that agreement is obtained from the organisers of the broadcast event and from the holders of broadcasting rights.
2 - Consumers are to be informed as to the inclusion of virtual audiovisual commercial communications at the beginning and end of each programme where these occur.
3 - The inclusion of virtual audiovisual commercial communications in creative works, as defined in point h) of paragraph 1 of article 2, and in debate or interview programmes is prohibited.
Article 41-C
Broadcast time
There is no limitation applicable to the amount of broadcasting time, within television programme services or on-demand audiovisual services, given to the identification of sponsorship, of product placement and of production props, or to the dissemination of messages that relate to public services or public interest purposes and humanitarian appeals which are broadcast free of charge.
Article 41-D
Interactivity
1 - Advertising inserted into on-demand audiovisual services or on-demand audiovisual services may include features which enable passage into an interactive environment that contains advertising.
2 - Such interactive features as are referred to in the preceding paragraph are prohibited during children's programmes and during the five-minute periods immediately preceding and subsequent to the broadcast thereof.
3 - The transition to the interactive environment that contains advertising is to be preceded by a notice on an intervening screen that contains clear information on the destination of this transition and allows easy return to the linear environment.
4 - The provision in television programme services of the features described in the preceding paragraph is subject to the general rules governing advertising and particularly to those rules which stipulate restrictions on the subject and content thereof.
SECTION IV
Identification of programmes and recording of broadcasts
Article 42
Identification of programmes
Programmes shall be identified and comprise all relevant information on the respective artistic and technical credits.
Article 43
Recording of broadcasts
1 - Irrespective of the application of article 92, programmes shall be recorded and conserved for a period not less than 90 days, except where a longer period is determined by law or judicial ruling.
2 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may, at any time, request the recordings referred to in the preceding paragraph, which recordings, in duly substantiated cases of urgency, operators are required to send within forty-eight hours.
SECTION V
Broadcast of audiovisual works
Article 44
Protection of the Portuguese language
1 - Broadcasts shall be spoken or subtitled in Portuguese, without prejudice to the possible use of other languages in programmes that fulfil occasional informative needs, are intended for the teaching of foreign languages, or are aimed specially at immigrant communities.
2 - Television programme services with national coverage, with the exception of those whose nature and thematic content would not permit such an approach, shall devote at least 50% of their broadcasts, excluding the time reserved for advertising, teleshopping and teletext services, to the broadcast of original Portuguese language programmes.
3 - Without prejudice to the preceding paragraph, television services referred therein shall reserve at least 20% of their broadcast time to creative programmes produced originally in Portuguese.
4 - For the purposes of calculating the percentage of programming referred to in the preceding paragraph, only the first five screenings of each work is to be counted, regardless of the year in which they are aired.
5 - The percentage specified in paragraphs 2 and 3 may comprise, up to 25%, programmes originating in other Portuguese-speaking countries.
6 - Television operators shall guarantee that compliance with the percentages referred to in paragraphs 2 and 3 is not accomplished during non-peak viewing periods.
Article 45
European production
1 - Television operators who operate television programme services with national coverage shall reserve a majority proportion of their transmission time for European works, excluding the time appointed to news services, sports events, games, advertising, teleshopping and teletext services.
2 - On-demand audiovisual services shall contribute to the promotion of European works, specifically through financial contributions to their production or through their progressive incorporation into the respective catalogue.
3 - On-demand audiovisual services are to give particular visibility to European works in their catalogue, implementing features which enable the public to search for such works by origin.
4 - Compliance with the rules governing the promotion of European works set out in paragraphs 2 and 3 of this article is subject to annual review by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media).
Article 46
Independent production
1 - Television operators engaged in the provision of television programme services with national coverage shall ensure that no less than 10% of their programming, excluding the time devoted to news, sports events, competitions, advertising, teleshopping and teletext services, consists of the broadcast of creative works having independent European production and produced less than five years previously.
2 - The programme services referred to in the preceding paragraph, where classified as general, shall allocate no less than one half of the time of the percentage of programming so stipulated to the broadcast of creative works of independent European production which were produced originally in Portuguese and produced less than five years previously.
3 - For the purposes of calculating the percentage of programming referred to in the preceding paragraphs, only the first five screenings of each work are to be considered, regardless of the year in which they are aired.
Article 47
Application criteria
1 - Compliance with the obligations set forth in articles 44 to 46 shall be assessed on an annual basis and is to take into account, where applicable, the specific nature of thematic television programme services and the broadcaster's responsibilities with regard to information, education, culture and entertainment.
2 - Reports on the assessment referred to above, containing the respective findings, are to be published on the website of Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) no later than 30 June of the year following the year to which they refer.
Article 48
Support for production
The State shall ensure, through appropriate legal, financial, fiscal or credit mechanisms, that measures exist which give incentive to the original production in Portuguese of audiovisual fiction, documentaries and animation, with a view to creating conditions which enable compliance with the provisions of articles 44 to 46.
Article 49
Duty to inform
Television operators and providers of on-demand audiovisual services shall provide Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) with all the elements it requires to oversee compliance with the obligations set forth in articles 44 to 46, which elements are to be provided on a quarterly basis and according to a model which said Regulatory Authority defines.
CHAPTER V
Public service
Article 50
Principles
1 - The structure and operation of the public television service operator shall be such as safeguards its independence from the Government, Public Administration and other public authorities, while ensuring that the various strands of opinion can be expressed and compared.
2 - The public television service will guarantee observance of the principles of universality and national cohesion, of diversification, of programming excellence and indivisibility, of pluralism and accuracy, of information independence, as well as the principle of innovation.
Article 51
Specific obligations upon the concessionaire of the public television service
1 - The concessionaire of the public television service shall exhibit, according to the principles laid down in the preceding article, programmes that promote the cultural and civic education of viewers, guaranteeing that all people have access to information, culture, education and quality entertainment.
2 - Specifically, it is incumbent upon the concessionaire to:
a) Provide varied and comprehensive programmes that promote cultural diversity and take into account the interests of minorities;
b) Promote public access to Portuguese cultural events and guarantee appropriate informative coverage thereof;
c) Provide independent, accurate, pluralist and contextualised information, ensuring news coverage of major national and international events;
d) Ensure the production and broadcast of educational and entertainment programmes intended for young people and children, contributing towards their education;
e) Ensure the broadcast of cultural, educational and informative programmes for specific audiences, including those of the different immigrant communities in Portugal;
f) Take part in educational activities for the media, including ensuring the broadcast of programmes targeted at the accomplishment of this objective;
g) Promote the broadcast of programmes in Portuguese, of varied types, and reserving a considerable part of its broadcasting time to European production, dedicating thereto percentages of time which exceed those to which, under the present law, all television operators are subject, in light of the purpose of each programme service;
h) Support national production of cinematographic and audiovisual works, in line with international commitments binding on the Portuguese State, and co-production with other countries, especially European countries and countries of the Portuguese language community;
i) Broadcast programmes intended especially for Portuguese people residing outside Portugal and for nationals of other countries having Portuguese an official language likewise residing outside Portugal;
j) Ensure that people with special needs are able to follow broadcasts, including through subtitling, sign language, audio-description and other techniques deemed appropriate, and ensure that programmes specifically aimed at this segment of the public are broadcast, according to the schedule defined in the multi-annual plan referred to in paragraph 3 of article 34, which shall take into account the specific responsibilities of the public service, as provided for in the respective concession contract;
l) Guarantee exercise of the right to broadcast time and to political reply, under the Constitution and the law;
m) Broadcast any announcement which is requested by the President of the Republic, by the President of Assembleia da República (Assembly of the Republic) or by the Prime Minister;
n) Provide broadcast time to the Public Administration, for the purposes of disseminating information which is of general interest, particularly as regards public health and safety.
Article 52
Concession of the television public service
1 - The concession of the public television service shall be granted for a 16-year period, under the terms of the concession contract to be concluded between the State and the concessionaire.
2 - The concession of the public television service shall be executed by means of unrestricted free-to-air television programme services, or, on grounds of a technological or financial nature, of free-to-air television programme services subject to subscription.
3 - The concession of the public television service is to include:
a) A general programme service distributed simultaneously throughout the national territory, including in the Autonomous Regions, having as its object the fulfilment of the educational, informative, cultural and entertainment needs of the general public;
b) A second general programme service distributed simultaneously throughout the national territory, including the Autonomous Regions, open to the participation of civil society and having as its object the fulfilment of the information and entertainment needs, and especially the education and cultural needs, of the various segments of the public, including minorities;
c) Two television programme services intended respectively for the Autonomous Region of the Azores and the Autonomous Region of Madeira;
d) One or more programme services aimed at Portuguese-speaking viewers residing abroad or in countries where Portuguese is an official language, promoting the affirmation, enhancement and defence of Portugal's image in the world.^
4 - The television programme services referred in points a), b) and c) of the preceding paragraph shall be broadcast on an unrestricted free-to-air basis.
5 - To comply with legal and contractual obligations, the concession of the public television service may also integrate television programme services having as their object:
a) The specialist provision of information, having particular regard to issues which are of interest to specific regions or communities, whether or not in articulation with other television programme services, including in respect of the joint management of rights;
b) The release of documentary material from the audiovisual archives of the public service concessionaire;
c) Fulfilment of the educational and training needs of young people and children;
d) The promotion of access to different areas of knowledge.
6 - The concession contract, as referred to in paragraph 1, shall establish, according to the provisions of the present chapter, the rights and obligations of each party, and shall define the objectives to be achieved and the qualitative and quantitative criteria which ensure their accomplishment, and shall further define the respective means of assessment.
7 - The contents of the concession contract and of acts or contracts referred to in the preceding paragraph shall be subject to an opinion from Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media).
8 - The concession contract is to be reviewed at intervals of four years, without prejudice to any amendments deemed necessary in intervening periods.
9 - The review process referred to in the preceding paragraph shall take into consideration the assessment of accomplishment of public service and consider the need for a public consultation on the objectives and reference criteria to apply in the subsequent four-year period.
Article 53
First general programme service of a national scope
The general programme service of national scope aimed at the general public shall, having regard to territorial realities and to the various groups comprising Portuguese society, give particular focus to:
a) Information, specifically by broadcasting debates, interviews, reports and documentaries;
b) Quality entertainment in original Portuguese language;
c) The broadcast of programmes of a cultural nature;
d) Making viewers aware of their rights and duties as citizens.
Article 54
Second general programme service of national scope
1 - The second general programme service of national scope will include programmes having a strong cultural and educational component, enhancing education, science, investigation, arts, innovation, entrepreneurialism, economic issues, social work, disclosure of humanitarian causes, non-professional and school sport, religious faiths, independent production of creative works, Portuguese cinema, environment, consumer protection and audiovisual experimentalism.
2 - The second general programme service of a national scope shall ensure coherent and high-quality programmes, which shall be distinguished from those of other public service television programme services, with the participation of public or private entities which have a relevant role in the areas mentioned in the preceding paragraph.
3 - An advisory body shall be established in respect of the second programme service to represent partners of the Public Administration and civil society related thereto.
Article 55
Television programme services of international scope
1 - Television programme services referred to in point d) of paragraph 3 of article 52 shall pursue their own objectives taking into account national interests as regards the connection to Portuguese communities throughout the world or cooperation with Portuguese-speaking countries.
2 - For the purpose of the preceding paragraph, the concessionaire of the public television service may enter into collaboration agreements with private television operators which broadcast general television programme services, as well as with public bodies and services with activity which is relevant in such areas.
3 - An advisory body shall be established in respect of the international television programme services to represent partners of the Public Administration and the civil society related thereto.
Article 56
Television programme services of regional scope
1 - The television programme services specifically aimed at the Autonomous Regions of the Azores and Madeira are to take due regard of the respective social, cultural and geographic realities and enhance regional production.
2 - Television programme services of a regional scope shall make broadcast time available to the Public Administration, including the autonomous regional administration, with a view to the dissemination of information of general interest, particularly as regards public health and safety.
3 - The concessionaire of the television public service and the Regional Governments of the Azores and Madeira may establish specific agreements that provide for the financing of specific complementary obligations of the television public service, defined as such by the respective Assembleias Legislativas (Legislative Assemblies).
Article 57
Performance financing and monitoring
1 - The State shall provide financing of the public television service and shall take steps to ensure the appropriate execution thereof, under the terms of the law and of the concession contract.
2 - Public financing shall be in compliance with the principles of proportionality and transparency.
3 - The concession contracts shall establish a control system for monitoring accomplishment of the objectives of public service and the transparency and proportionality of associated financial inflows and outflows, guaranteeing that these are limited to the level necessary for their execution, and providing for appropriate mechanisms to ensure reimbursement in case of surplus financial compensation.
4 - The concession contract shall likewise prohibit the concessionaire from adopting behaviour which is not justified by market rules and which leads to increased costs or reductions in revenues.
5 - In order to ensure suitable and efficient management of resources, in accordance with the likely evolution of the economic and social environment, expenditure resulting from the financing of the public radio and television service will be specified on a multi-annual basis over four-year periods.
6 - The specification referred to in the preceding paragraph shall identify, in addition to total costs for the four-year period, the breakdown of such expenditure on an annual basis.
7 - The annual external audit promoted by the Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), in the scope of its assignments, is to include assessment of compliance with paragraphs 2 to 4 of the present article.
CHAPTER VI
Rights to broadcast time, to reply and to political reply
SECTION I
General provision
Article 58
Accounting of broadcast time
Television operators will keep account of the broadcast time, for the purpose of this chapter, informing interested parties as to the respective results.
SECTION II
Right to broadcast time
Article 59
Access to right to broadcast time
1 - Political parties, the Government, trade unions, professional organisations and those representing economic activities and environmental and consumer protection associations are guaranteed the right to broadcast time on the public television service.
2 - "Broadcast time" means an individual programme slot for which the holder of the right is responsible, a fact that should be explicitly mentioned at the beginning and at the end of each programme slot.
3 - The entities referred to in paragraph 1 shall be entitled, free of charge and on an annual basis, to the following broadcast time:
a) Ten minutes per each party represented in the Assembleia da República (Assembly of the Republic) or in the Assembleias Legislativas das Regiões Autónomas (Legislative Assemblies of the Autonomous Regions) plus a further thirty seconds per elected member;
b) Five minutes per each party which, without representation in Assembleia da República (Assembly of the Republic) or in the Assembleias Legislativas das Regiões Autónomas (Legislative Assemblies of the Autonomous Regions), participated in the most recent legislative elections, plus a further thirty seconds per 15 000 votes obtained in said elections;
c) Sixty minutes for the Government and sixty minutes for parties represented in Assembleia da República (Assembly of the Republic) which are not part of the Government, to be divided according to their level of representation;
d) Ninety minutes for trade union organisations, ninety minutes for professional organisations and those representing economic activities, and fifty minutes for environmental, consumer protection and human rights associations, to be divided according to their level of representation;
e) Fifteen minutes for other bodies which are entitled to broadcast time under the law.
4 - In the case of the Autonomous Regions, the right of broadcast referred to in the preceding paragraph is to be exercised by the parties that stood in elections to Assembleias Legislativas Regionais (Regional Legislative Assemblies) in programme services specifically aimed at the respective Region.
5 - Each right holder may use the entitlement to broadcast time one time only in any period 15 days, and may not use it in programmes that have a duration exceeding ten minutes or that is less than three minutes, unless their overall broadcast time is lower.
6 - The persons responsible for programming shall, in collaboration with the holders of the right to broadcast time and pursuant to this law, organise general plans for its respective use.
7 - Where there is no agreement on the plans referred to in the preceding paragraph, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) shall conduct arbitration.
Article 60
Limitation of the right to broadcast time
1 - The right to broadcast time may not be exercised on Saturdays, Sundays and on national public holidays, and shall also be suspended one month prior to the date established for the beginning of an electoral or referendum campaign, under the respective legislation.
2 - The right to broadcast time is non-transferable.
Article 61
Broadcast and reservation of the right to broadcast time
1 - Broadcast times shall be transmitted in the television programme service with national coverage during peak viewing times immediately before or after the main national news service broadcast between 7.00 p.m. and 10.00 p.m.
2 - Holders of the right to broadcast time may request the reservation of the time to which they are entitled up to 15 days prior to transmission, whereas the respective recording is to be carried out or pre-recorded materials submitted no later than forty hours prior to the broadcast of the programme.
3 - Programmes which are ready for broadcast are to be delivered no later than twenty-four hours prior to transmission.
4 - Holders of the right to broadcast time are to be provided, on absolutely equal terms, with such technical means as are indispensable for the production of their respective programmes.
Article 62
Forfeiture of the right to broadcast time
Failure to comply with the time limits stipulated under the preceding article will result in the forfeiture of the right, except where such failure is due to forces which are beyond the control of the holder of the right, in which case the unused time may be added to the next programme subsequent to the removal of the obstacle.
Article 63
Right to broadcast time during election periods
During election periods, use of the right to broadcast time is governed by applicable electoral legislation, covering all general television programme services provided on a free-to-air basis.
SECTION III
Right to political reply
Article 64
Right to political reply of opposition parties
1 - Parties represented in Assembleia da República(Assembly of the Republic) which do not form part of the Government are entitled to reply in the same programme service to political statements made by the Government in the public television service where such statements directly concern them.
2 - The duration and prominence given to the exercise of the right referred to in the preceding paragraph shall be the same as given to the original statement that gave rise to the reply.
3 - When more than one party has requested to exercise the right, through their respective representatives, the time is divided equally among the different holders of said right, whereas each respondent shall be entitled to a minimum period of one minute.
4 -The procedures laid down in the present law in respect of the exercise of the right to reply shall apply likewise, mutatis mutandis, to the right to political reply.
5 - For the purposes of the present article, only statements on general or sector policies made by the Government in its name and identifiable as such shall be considered, whereby statements made by members of the Government on matters relating to the management of their respective departments are not deemed relevant for this purpose.
6 - The provisions set forth in the preceding paragraphs shall correspondingly apply, in respect of programme services specifically aimed at the Autonomous Regions, to the right to political reply of the parties which, while represented in the Assembleias Legislativas Regionais (Regional Legislative Assemblies), are not part of the respective Regional Governments.
SECTION IV
Rights to reply and to rectification
Article 65
Premises governing rights to reply and to rectification
1 - Any natural or legal person, organisation, public service or body which is referred to, albeit indirectly, in television programme services or in on-demand audiovisual services in such a way that their reputation or good name might be affected is granted a right to reply in said services.
2 - The persons and undertakings referred to in the preceding paragraph are entitled to rectification in television programme services and in on-demand audiovisual services in which false or inaccurate references about them have been made.
3 - The right to reply and to rectification shall be prejudiced in the event that, with the express agreement of the concerned party, the television operator or provider of on-demand audiovisual services has corrected or clarified the relevant text or image, or has allowed the interested party to present, by other means, the facts or views which it has been claimed give cause to reply and to rectification.
4 - The right to reply and to rectification is without prejudice to criminal proceedings in respect of the act of broadcast and is without prejudice to the right to compensation for damages caused.
Article 66
Right to view the broadcast
1 - The holder of the right to reply or to rectification, or his legitimate representative pursuant to paragraph 1 of the following article, may request, for the purposes of exercising his right, to view the material from the broadcast in question, which material is to be provided within a period not exceeding twenty-four hours.
2 - The request for viewing suspends the deadline for the exercise of the right to reply or to rectification, which shall restart twenty-four hours after the broadcaster has provided the recording.
3 - The right to view the broadcast shall also involve obtaining a recording of the broadcast, upon payment of the cost of the device used.
Article 67
Exercise of rights to reply and to rectification
1 - The rights to reply and to rectification shall be exercised by the holder thereof, his legal representative or successors within 20 days following the broadcast.
2 - The deadline stipulated in the preceding paragraph is to be suspended where, for reasons of force majeure, the persons specified therein are prevented from exercising the right under consideration.
3 - The text of the reply or rectification is to be submitted to the television operator or provider of on-demand audiovisual services, bearing the signature and identification of the author, using a procedure which provides proof of receipt and expressly invoking the right of reply or rectification or the applicable legal provisions.
4 - The content of the reply or rectification is to be limited to content which is directly and usefully relevant to the references that gave them cause, and shall not exceed the number of words of the text which gave cause thereto.
5 - The reply or rectification shall not include any words that are disproportionately uncivil or that give rise to criminal or civil liability, for which, in such cases, only the author of the reply or rectification shall be accountable.
Article 68
Decision on the transmission of the reply or rectification
1 - In the event that a reply or rectification is untimely, originates from persons without legitimacy, is clearly unsubstantiated or is contrary to the provisions of paragraphs 4 and 5 of the preceding article, the television operator or provider of on-demand services may refuse to broadcast it, in which case it shall inform the concerned party in writing as to the refusal and the grounds therefor within twenty-four hours following receipt of the reply or rectification.
2 - Where the reply or rectification does not comply with the provisions of paragraphs 4 and 5 of the preceding article, the television operator shall request from the interested party, within the deadline laid down in the preceding paragraph, that he remove the relevant passages or words within forty-eight hours, failing which the television operator is entitled to refuse to broadcast the text in its entirety.
3 - Where the right to reply or to rectification has not been fulfilled or has been unjustifiably refused, the interested party may bring the matter to the judicial court in the area of his residence, within 10 days from said refusal or from the expiry of the legal deadline for the fulfilment of the right, or to Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media), pursuant to and within the time limits set out in specifically applicable legislation.
4 - Following a request for legal notification of the operator which has not fulfilled the right to reply or to rectification, that operator shall be immediately notified by post so that it may respond to the claim within a period of two working days, following which a decision shall be issued within an equal period, which decision may be appealed with a simple devolutive effect.
5 - Only documentary evidence shall be admissible, and all documents shall be attached to the initial claim and response.
6 - Where the claim is upheld, the television operator shall broadcast the reply or rectification within the deadline laid down in paragraph 1 of the following article, which broadcast shall also include reference to the fact that that it is being carried out subsequent to a judicial ruling or a ruling of Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media).
Article 69
Broadcast of the reply or rectification
1 - The reply or rectification is to be broadcast within twenty-four hours following delivery of the respective text to the television operator or provider of on-demand audiovisual services, except where as provided for under paragraphs 1 and 2 of the preceding article.
2 - Replies and rectifications are to be broadcast free of charge:
a) In television programme services, in the same programme or, where this is not possible, at an equivalent broadcasting time;
b) In on-demand audiovisual services, in the programme associated, in the catalogue, with the programme to which the reply or rectification refers, with the same prominence and properly identified as a reply or rectification.
3 - Replies or rectifications are:
a) In respect of television programme services, to be broadcast as many times as was broadcast the reference which gave cause thereto.
b) In respect of on-demand audiovisual services, to remain accessible to the public for as long as the programme making the reference which gave cause thereto remains in the catalogue or, irrespective of this fact, for a period of not less than seven days.
4 - The reply or rectification shall be read by a speaker of the broadcaster in a format that ensures it is easily understood and may include other audiovisual components where the reference which gave rise thereto made use of similar techniques.
5 - The broadcast of the reply or rectification may not be preceded nor followed by any comments whatsoever, with the exception of such comments as are necessary to indicate any factual inaccuracy or error which may give rise to a new reply or rectification, under the terms of paragraphs 1 and 2 of article 65.
CHAPTER VII
Liability
SECTION I
Civil liability
Article 70
Civil liability
1 - The conditions under which civil liability may be incurred, as resulting from acts committed through television programme services or on-demand audiovisual services, is to be determined according to general principles.
2 - Television broadcasters or providers of on-demand audiovisual services shall be held jointly liable with those responsible for the broadcast of pre-recorded material, except in respect of material which is broadcast pursuant to the right of broadcast time, political reply, reply and rectification or in the course of interviews or debates involving persons who are not contractually bound to the broadcaster or provider.
SECTION II
Penalties
Article 71
Crimes committed through television programme
services or on-demand audiovisual services
1 - Such acts or behaviours that are damaging or harmful to legally protected interests and which are perpetrated through television programme services or through on-demand audiovisual services shall be punishable according to general provisions, with the adaptations laid down in the following paragraphs.
2 - Where the law does not provide for an aggravation on account of the means of perpetration, crimes committed through television programme services or through on-demand audiovisual services which are not foreseen in this law shall be punishable by penalties established in the respective criminal provisions, having their maximum and minimum limits increased by the order of one third.
3 - The responsible person referred to in article 35 shall be liable only where he does not oppose the perpetration of crimes, as referred to in paragraph 1, by means of appropriate preventative action, in which case penalties stipulated in corresponding legal categories are applicable with the respective limits reduced by a third.
4 - Where duly identified persons provide statements which are properly reproduced or provide opinions, they shall be solely liable in respect thereof, except where the respective content constitutes incitement to hatred on the grounds of race, religion, politics, skin colour, ethnic or national origin, gender or sexual orientation, or incitement to perpetrate a crime, and where the respective transmission has no justification under journalistic criteria.
5 - In the case of unauthorised broadcasts, the person responsible for ordering the respective broadcast shall be held liable.
6 - Technicians at the service of television operators or of the providers of on-demand audiovisual services will not be held liable for the broadcasts to which they contributed on a professional basis, provided that they are not accountable for the awareness of the criminal nature of their act.
Article 72
Illegal pursuit of the television activity
1 - Whosoever pursues a television activity while not being legally authorised to do so shall be punished with imprisonment for up to 3 years or with a fine of up to 320 days.
2 - Pursuant to article 110 of the Código Penal (Criminal Code), all and any assets used in the unauthorised pursuit of a television activity shall be forfeit in favour of the State, without prejudice to the rights of third parties who acted in good faith.
3 - Paragraph 1 shall apply specifically in the following situations:
a) Pursuit of the activity by an undertaking other than one holding a license or authorisation;
b) Failure to comply with a decision to revoke a licence or to prohibit the retransmission of a programme service.
Article 73
Illegal pursuit of the television activity
1 - Those responsible for giving guidance to and for the supervision of the content of television broadcasts or responsible for the selection and organisation of the catalogue of on-demand audiovisual services, or whosoever replaces them, commits a crime of qualified disobedience when, in order to prevent the intended purposes:
a) They fail to adhere to a judicial ruling ordering the broadcast of a reply or rectification pursuant to paragraph 6 of article 68;
b) They refuse to broadcast judicial rulings, pursuant to article 91;
c) They fail to comply with the determinations of Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) as regards the exercise of the right to broadcast time, to political reply, or to reply or rectification;
d) They fail to comply with a decision to suspend a broadcast or repeated broadcast of television programme services, the offer of on-demand audiovisual services or the respective programmes.
2 - Any undertaking which fail to adhere to a decision of Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) to suspend a retransmission, pursuant to article 86, also commits a crime of qualified disobedience.
Article 74
Undermining the freedom of programming and information
1 - Whosoever prevents or prejudices the broadcast of programme services or the offer of on-demand audiovisual services, or seizes or damages the material that is necessary for the pursuit of the television activity, except where as provided for under the law, with the purpose of undermining the freedom of programming and information, is to be punished with imprisonment for a period up to 2 years or with a fine of up to 240 days where no heavier penalty is provided for under criminal law.
2 - The application of the penalty provided for in the preceding paragraph shall be without prejudice to civil liability for any damages caused to the broadcaster.
3 - Where the perpetrator is an agent or servant of the State or of a public legal person and commits the acts described in paragraph 1, in the exercise of his duties, he shall be liable to a term of imprisonment of up to 3 years or a fine up to 320 days, where a heavier penalty has not been provided for under penal law.
Article 75
Minor breaches
1 - The following are punishable with a fine of between 7 500 (euros) and 37 500 (euros):
a) Failure to comply with the provisions of article 4-A, of paragraph 3 of article 19, of the first part of paragraph 4 of article 27, of articles 29 and 42, of paragraph 5 of article 44, of articles 45 and 46, of paragraph 6 of article 40-B, of paragraph 2 of article 41-B, of paragraph 2 of article 41-C and of article 58;
b) Failure to comply with the provisions of the first part of paragraph 1 of article 60;
c) Failure to include the reference referred to in the second part of paragraph 6 of article 68.
2 - In the case of programme services having local coverage, the minimum and maximum of the offenses foreseen in the preceding paragraph are reduced to one third.
3 - Negligence is punishable with the minimum and maximum limits of the fines under the preceding paragraph reduced to the order of one half.
Article 76
Serious breaches
1 - The following are punishable with a fine of between 20 000 (euros) and 150 000 (euros):
a) Failure to comply with the provisions of paragraphs 1, 6, 8 and 9 of article 25, the second part of paragraph 4 and of paragraph 8 of article 27, of paragraph 1 of article 30, of paragraph 5 of article 32, of paragraphs 4 and 5 of article 33, of paragraph 3 of article 34, of articles 35, 36, 37, 40 and 40-A, of paragraphs 1 to 5 of article 40-B, of articles 41 and 41-A, of paragraphs 1 and 3 of article 41-B, of paragraphs 1 and 3 of article 41-C, of paragraphs 2 and 3 of article 41-D, of article 43, of paragraphs 1 to 3 of article 44, of article 49, of paragraph 4 of article 59, of paragraphs 1 and 4 of article 61, of paragraphs 2 and 3 of article 64, of article 69 and of paragraph 1 of article 92;
b) Failure to include the information referred to in paragraph 1 of article 68;
c) Breach of the provisions of article 20, of the second part of paragraph 1 of article 60 and of the deadlines established in paragraph 1 of article 66 and paragraph 6 of article 68
d) Failure to comply with the conditions governing the inclusion of features that allow passage into the interactive environment which contains advertising as provided for in paragraph 1 of Article 41-D.
2 - In the case of programme services having local coverage, the minimum and maximum of the offenses foreseen in the preceding paragraph is reduced to one third.
3 - Negligence is punishable with the minimum and maximum limits of the fines under the preceding paragraph reduced to the order of one half.
Article 77
Very serious breaches
1 - The following are punishable with a fine of 75 000 (euros) to 375 000 (euros) and suspension of the license or authorisation of the programme service or of the broadcast of the programme through which the offence is committed, for a period of 1 to 10 days, according to the severity of the offense:
a) Failure to comply with the provisions of paragraphs 1 to 3 of article 4, paragraphs 3 and 4 of article 4-B and paragraph 2 of article 7, of articles 11 and 12, of paragraph 1 of article 21 and paragraphs 2 and 3 of articles 25 and 27, of article 31, of paragraphs 2 and 6 of article 32, paragraphs 1 and 3 of article 33, paragraph 1 of article 39 and paragraph 2 of article 60;
b) Violation by any operator of binding coverage obligations and the respective scheduling;
c) Infringement by any operator of paragraph 2 of article 30 and the right provided for in paragraph 1 of article 66;
d) The operation of television programme services by entities other than holders of licences or authorisations;
e) Non-fulfilment of the right to broadcast time held by entities entitled thereto under paragraph 1 of article 59.
2 - The retransmission of television programme services or programmes in breach of paragraphs 2 and 3 of article 27 shall be liable to the penalty referred in the preceding paragraph where:
a) Rights over contents under consideration are acquired in the knowledge of their nature; or
b) In the case of retransmission of contents originating in countries outside the European Union, the breach is obvious and clear and the distribution operator fails to prevent access to the respective content.
3 - In the case of programme services having local coverage, the minimum and maximum of the offenses foreseen in the preceding paragraph is reduced to one third.
4 - Negligence is punishable with the minimum and maximum limits of the fines under the preceding paragraph reduced to the order of one half.
Article 77-A
Offences committed though on-demand audiovisual services
1 - When the offenses referred to in articles 75, 76 and 77 are committed through on-demand audiovisual services, the minimum and maximum limits of the respective fines are reduced to one quarter.
2 - The act of committing an offence under article 77 through on-demand audiovisual services may give rise to the suspension of the on-demand audiovisual service or of the programme in which the offence was committed, in accordance with the severity of the offense, for a period of 1 to 10 days.
Article 78
Liability
1 - The operator or provider through whose television programme services or audiovisual programme service the offence is committed will be held liable for the breaches foreseen in the preceding articles, except in respect of any breach of paragraph 2 of article 60, in which case the holder of the right to broadcast time is held liable.
2 - Distribution operators shall be liable for breaches for which they are accountable pursuant to article 25 and paragraph 2 of article 77.
Article 79
Infringements committed during broadcast time
Violation of the provisions of paragraphs 2 and 3 of article 27 and of paragraph 2 of article 60, laid down in point a) of paragraph 1 of article 77, where committed in the course of the exercise of the entitlement to broadcast time, shall be punishable with the additional penalty of suspension of the entitlement to exercise said right for a period of between 3 and 12 months, with a minimum of 6 to 12 months in the event of a repeated offence, without prejudice to other penalties provided for in the law.
Article 80
Special mitigation of and waiver of suspension and fine
1 - In the event that circumstances are such as allow special penalty mitigation, under general law:
a) In the case of a minor or serious breach, the provisions of paragraph 3 of article 18 of Decree-Law No. 433/82 of 27 October, shall apply, as amended by Decree-law no. 244/95 of 14 September.
b) In the case of a very serious breach, the limits of the penalty shall be reduced by a third, and the suspension of the license or authorisation for the programme service or transmission of the programme may not be ordered.
2 - In the case of a minor breach, the penalty applied to the perpetrator thereof may be waived where circumstances are such as to allow a penalty waiver under criminal law.
3 - The penalty applied to the operator may be waived in the case of violation of the time limits applicable to advertising as established in article 40, where failure to comply with this limit occurs occasionally and on exceptional grounds, is duly justified, namely by the unexpected delay or extension of a programme, and where there is evidence that, in the course of that time period, and the preceding and subsequent periods, the accumulated advertising limit has been respected as stipulated.
Article 81
Special aggravation
Where the operator commits a breach after having been punished for another offence committed less than one year previously, the minimum and maximum limits of the fine and the suspension of broadcasting shall be doubled.
Article 82
Revocation of licence and authorisation
1 - Failure to comply with paragraph 2 of article 7, paragraph 1 of article 21, paragraphs 2 and 3 of article 25, paragraphs 2 and 3 of article 27, article 31, paragraphs 2 and 6 of article 32, paragraph 1 of article 33, paragraph 1 of article 39, paragraph 1 of article 59, paragraph 2 of article 60 and paragraph 1 of article 66, and any infringement of binding coverage obligations and the respective scheduling in television programme services, where two previous breaches of the same degree of seriousness have been committed , may give rise to the revocation of the respective license or authorisation.
2 - For the purposes of the preceding paragraph, breaches shall not be taken into consideration where more than two years have elapsed between conviction and the following infringement.
3 - Failure to comply with article 12 and paragraph 2 of article 30 may give rise, according to the seriousness of the infringement, to the revocation of the license or authorisation of the television programme services where it was committed.
4 - In the event of breach of article 20, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may set a new deadline for the start of programme broadcasting, upon expiry of which, where the breach has persisted, the license or authorisation will be revoked.
5 - Repeated breach of points a) to c) of paragraph 1 of article 73 may give rise to the revocation of the license or authorisation of television programme services where it was committed.
6 - Any violation of point d) of paragraph 1 of article 73 may give rise to the revocation of the license or authorisation of television programme services where said violation was committed.
Article 83
Suspension of execution
1 - Execution of the suspension of the license or of the authorisation of programme services or of the transmission of a programme may be suspended for a period of between three months and one year, where the conditions giving basis to suspension of execution under general criminal law are fulfilled and where the operator has not been convicted of an offence within the preceding year.
2 - The suspension of execution may be made subject to provision of deposit to guarantee good conduct, to be set between 20 000 (euros) and 150 000 (euros), depending on the duration of the suspension.
3 - The suspension of execution shall be revoked whenever, during the course of the respective period, the offender commits a very serious breach.
4 - Revocation determines enactment of the suspension, the execution of which was suspended, and the forfeiture of the guarantee deposit.
Article 84
Abbreviated proceedings
1 - In the case of infringement of paragraphs 1 and 2 of article 40 and in any other situation where Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) is in possession of a recording or other automated record of the facts that constitute the infringement, as soon as the news of the infringement has been received, the operator shall be notified of:
a) The facts that constitute the infringement;
b) The legislation which has been infringed;
c) The applicable penalties;
d) The time-limit granted for the presentation of his defence.
2 - The defendant may, within 20 days from the notification, present his defence in writing, giving indication of such evidence as he deems fit to be provided.
Article 85
Interim suspension of transmission
(Repealed)
Article 86
Limitations on the re-broadcast of television programme services
1 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may suspend the re-broadcast of television programme services or of the respective programmes:
a) In the case of unrestricted, free-to-air television programme services or unrestricted television programme services subject to subscription, where these cause obvious and serious harm to the free personality development of children and adolescents, including the broadcast of programmes containing scenes of pornography or gratuitous violence; or
b) Regardless of the type of programme service, where these incite hatred, racism or xenophobia; and where the television broadcaster has committed a similar breach at least twice during the preceding 12-month period.
2 - In the case of television programme services or programmes from other Member States of the European Union, the measure referred to in the preceding paragraph shall be preceded by:
a) Notification by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) made to the broadcasting television operator and to the European Commission, identifying the alleged breaches and measures which are to be adopted in the event that such breaches are repeated;
b) Where the breach persists after 15 days have elapsed from the notification provided for in the preceding point and following conciliatory consultations between the Member State of transmission and the European Commission, notification by Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) made to the European Commission, of the Member State of broadcast and also of the distribution operator as to the suspension of the rebroadcasting of programmes that fail to comply with the preceding paragraph.
3 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) shall notify the member of Government responsible for media as to the requests and notifications it effects under the terms of the preceding paragraph.
Article 86-A
Dislocation of broadcasts
1 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may take appropriate measures as are necessary and proportionate to achieve cessation of offences committed through programme services provided by television broadcasters under the jurisdiction of another Member State where said Authority is satisfied that such services are wholly or mainly targeted at the Portuguese territory and that the operators thereof have established themselves in another Member State in order to circumvent the stricter rules to which they would be subject under the jurisdiction of the Portuguese State.
2 - The measures referred to above may be adopted only when, after having made a detailed request to the competent Member State that it put an end to the infringing action, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media):
a) Has not, within a period of two months, been informed by the Member State concerned as to the results obtained, or where it deems such results to be unsatisfactory; and
b) It has subsequently given notice, on a reasoned basis, to the European Commission and to the Member State concerned of its intention to take such measures and the Commission does not lodge opposition to the decision within the subsequent period of three months.
3 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) will provide procedures which ensure reciprocity in the exercise of the option referred to in paragraph 1 by other Member States in respect of television programme services of television operators which are under the jurisdiction of the Portuguese State.
4 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) shall notify the member of Government responsible for the media as to any requests and notifications it executes pursuant to paragraph 2, and as to any requests and notifications it receives in respect of situations foreseen in the preceding paragraph.
Article 86-B
Limitations on the provision of on-demand audiovisual services
1 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may, insofar as is proportionate to its oversight objectives, impede the provision of programmes included in catalogues of on-demand audiovisual services which breach the provisions of paragraphs 2 and 10 of article 27.
2 - In the case of on-demand audiovisual services originating from other Member States of the European Union, the measure referred to in the preceding paragraph is to be preceded by:
a) A request to the Member State where the service provider has its origin that it put an end to the situation; or
b) In the event that this has not been undertaken or in the event that the steps taken prove to be inadequate, notification to the European Commission and the Member State of origin as to its intention to take restrictive measures.
3 - In urgent cases, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) may take restrictive measures without previously giving notification to the Commission and to other Member States of origin in accordance with the preceding paragraph.
4 - In the case foreseen in the preceding paragraph, Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) shall notify the Commission and the Member State to whose jurisdiction the provider of on-demand audiovisual services is subject as to the restrictive measures, doing so without delay and indicating the grounds for its determination of the case as urgent.
5 - Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) shall notify the member of Government responsible for the media as to any requests and notifications it executes pursuant to paragraph 2, and as to any requests and notifications it receives in respect of situations foreseen in the preceding paragraph.
SECTION III
Special provisions on proceedings
Article 87
Form of proceedings
Proceedings for criminal offences which are committed through television programme services will be governed by the provisions of the Código de Processo Penal (Code of Criminal Proceeding) and complementary legislation, with the specificities resulting from the present law.
Article 88
Territorial jurisdiction
1 - The judicial court of the area where the operator has its registered office or permanent representation shall have jurisdiction over crimes provided for herein.
2 - The preceding paragraph does not apply to crimes committed against good name and reputation, the protection of private life or other personal values, whereas, in such cases, the judicial court of the area of residence of the injured party shall have jurisdiction.
3 - In the case of television broadcasts by an undertaking which is not so authorised under the law, and where the element defining jurisdiction under paragraph 1 is unknown, the Judicial Court of Lisbon shall have jurisdiction.
Article 89
Interim suspension in criminal proceedings
(Repealed)
Article 90
Regime of evidence
1 - In order to prove the requisites for the exercise of the rights to reply or to rectification, and without prejudice to other means of evidence provided for by law, the interested party may request, pursuant to article 528 of the Código de Processo Civil (Code of Civil Procedure), that the broadcaster be instructed to present recordings of the respective programme, within the time-limit for response.
2 - In addition to the means of evidence referred to in the preceding paragraph, only documentary evidence attached to the initial claim and response shall be admissible.
Article 91
Broadcast of decisions
1 - Where so requested by Ministério Público (Public Prosecution Service) or by an injured party, and following a judicial ruling, the operative part of final judgments in respect of crimes committed though television programme services or through on-demand audiovisual services, as well as the identification of the parties concerned, is to be broadcast by the respective broadcaster.
2 - A defendant in criminal proceedings reported on television who is subsequently acquitted in a final judgement may make a request to the court that the findings of the judgement are also reported by the broadcaster, in the same programme service and with an equivalent schedule, duration and prominence.
3 - In the case of on-demand audiovisual services, the situation described in the preceding paragraph is made subject, mutatis mutandis, to the provisions of point b) paragraphs 2 and 3 of article 69, in respect of the transmission of reply or rectification.
4 - Broadcast of the operative part of judgments referred to in preceding paragraphs is to be undertaken in such a manner as to safeguard the rights of third parties.
CHAPTER VIII
Conservation of television heritage
Article 92
Legal deposit
1 - Recordings of programmes that are deemed to be of public interest due to their historical or cultural importance shall be subject to legal deposit, for the purpose of long-term conservation and access for research.
2 - The legal deposit referred to in the preceding paragraph will be governed by a specific statutory instrument, which will safeguard the interests of authors, producers and operators.
3 - The State will likewise promote the long-term conservation of and public access to recordings deemed to be of public interest and made prior to the statutory instrument that governs the legal deposit comes into force, by means of specific protocols established with each operator.
CHAPTER IX
Final and transitory provisions
Article 93
Regulatory powers
1 - Except where otherwise provided for by law, it shall be incumbent upon Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) to regulate the issues provided for herein and to monitor compliance therewith.
2 - It is incumbent upon Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) to instruct breach proceedings as provided for herein and it is incumbent upon the chairman of said Authority to apply the corresponding penalties.
3 - Revenues from fines will revert 60% to the State and 40% to the Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media).
Article 94
Capacity reserve
1 - Upon granting rights of use of frequencies for the terrestrial digital television service of national coverage having unrestricted free-to-air access, transmission capacity shall be reserved for television programme services broadcast by terrestrial means in analogue mode provided by operators holding licenses or concessions in force at the date of entry into force hereof.
2 - Claims to the right referred to in the preceding paragraph shall be submitted to Entidade Reguladora para a Comunicação Social (Regulatory Authority for the Media) by interested operators, under penalty of expiry, within 60 days from the granting of rights of use of frequencies under consideration.
3 - Failure to exercise the right provided for in the preceding paragraphs shall be without prejudice to paragraphs 2 and 3 of article 25 hereof.
Article 95
Supervening amendments
The allocation of new licenses or authorisations as well as any amendment of the current legal framework shall not constitute grounds for television operators to allege alteration of conditions in respect of the pursuit of the activity as regards the economic and financial balance, nor do such occurrences confer any entitlement to compensation.
Article 96
References
References made to Law 32/2003 of 22 August shall be deemed to be made to the corresponding provisions hereof.
Article 97
Transitory provision
1 - Paragraph 1 of article 22 and paragraph 1 of article 52 shall be without prejudice to the calculation of ongoing time limits for licenses, authorisations and concession of the public television service at the date of entry into force hereof.
2 - Article 23 shall apply to licenses and authorisations held by operators exercising their activity as on the date of entry into force hereof, whereas the first interim evaluation will take place at the end of the 1st or 2nd five-year period following the date of allocation or last renewal, as applicable.
3 - The provisions hereof are fully applicable to companies which, as on the date on which this statutory instrument enters into force, effectively pursue a television activity, as defined in point a) of paragraph 1 of article 2.
Article 98
Repealing provision
1 - The following are hereby repealed:
a) Law 32/2003 of 22 August;
b) Decree-Law no. 237/98 of 5 August.
2 - (Repealed)
