Decree-Law no. 62/2009, of 10 March

Published in D.R. number 48 (Series I) of 10 March 2009

Ministério da Economia e da Inovação (Ministry of Economy and Innovation)

Decree-Law


Decree-Law no. 7/2004, of 7 January, in the scope of the information society, governs, among other issues, unsolicited communications for direct marketing purposes, providing for protection measures against the invasion of privacy.

The increasing number of consumers who use mobile phones nowadays, the technological development of the latter and also mass access to new information and communication technologies, made the Internet, SMS (short message service) and MMS (multimedia messaging service), among other services, attractive means of transmission of advertisements, allowing advertisers to reach a large number of consumers at a low cost.

The obligation on providers to obtain the previous consent of the recipient to send messages with direct marketing purposes has already been provided for, as well as the obligation to maintain, on their own or through bodies that represent them, an updated list of persons who have expressed their wish not to receive such advertising communications. However, these lists are deemed to be insufficient and consequently, for the purpose of the implementation of provisions in article 22 of Decree-Law no. 7/2004, of 7 January, it is deemed that it should be incumbent on the Direcção-Geral do Consumidor (General Consumer Directorate) to maintain permanently up-to-date a list of national scope, which facilitates the exercise of right of consumers to oppose to the processing of their personal data with direct marketing purposes or any other means to seek customers, thereby preserving the privacy of their personal data under article 12 b) of Law no. 67/98 of 26 October (Personal Data Protection Law).

The Comissão Nacional de Protecção de Dados (National Data Protection Commission) was heard.

The hearing of the Conselho Nacional do Consumo (National Consumer Council) was also promoted.

On an optional basis, the following bodies were also heard: the Associação Portuguesa para a Defesa do Consumidor, União Geral de Consumidores, Associação Portuguesa de Consumidores dos Media and ICP - Autoridade Nacional de Comunicações.

Therefore:

Pursuant to article 198, paragraph 1 a), of the Constitution, the Government hereby decrees the following:

Article 1
Amendment to Decree-Law no. 7/2004, of 7 January

Article 22 of Decree-Law no. 7/2004, of 7 January, is hereby amended to read as follows:

«Article 22
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8 - Without prejudice to the preceding paragraph, it is incumbent on the Direcção-Geral do Consumidor - DGC (General Consumer Directorate) to maintain permanently up-to-date a list of national scope of persons who have expressed a general wish not to receive any advertising communications.

9 – The entry in the list referred to in the preceding paragraph requires filling in the electronic form available at DGC' website.

10 – Companies that promote the sending of messages with direct marketing purposes must consult this list, which shall be updated every quarter by DGC, and which shall be made available upon request.

11 –The sending of advertising communications by electronic means to persons included in the lists provided for in paragraphs 7 and 8 shall be prohibited.»

Article 2
Entry into force

This Decree-Law takes effect 60 days after the date of publication.

Checked and approved in the Council of Ministers of 17 December 2008. – Luís Filipe Marques Amado - António José de Castro Guerra - Mário Lino Soares Correia.

Promulgated on 13 February 2009.

Let it be published.

The President of the Republic, Aníbal Cavaco Silva.

Counter-signed on 17 February 2009.

The Prime Minister, José Sócrates Carvalho Pinto de Sousa.