Assembleia da República (Assembly of the Republic)
Law
Provisions authorizing the Government to legislate on certain legal aspects of information society services, in particular electronic commerce, in the internal market, thereby carrying out the transposition of Directive 2000/31/EC of the European Parliament and of the Council, of 8 June 2000, to the national legal system.
Pursuant to paragraph d) of article 161 of the Constitution, the Assembly of the Republic hereby decrees the following:
Article 1
Scope
1 – The Government is granted authorization to legislate on the following legal aspects of the electronic commerce, carrying out the transposition of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000:
a) Articulating the right to information and the provision of network content association services;
b) Establishing out-of-court schemes for dispute settlement between the information society service providers and recipients;
c) Assigning administrative entities the provisional dispute settlement on network content lawfulness, without prejudice to a definitive solution to the dispute by means of a court action;
d) Assigning administrative entities the task of investigating breach proceedings and imposing the respective fines;
e) Establishing breaches as well as primary or supplementary sanctions, regarding the service providers regime in the information society, network commercials and electronic contracts;
2 – The purpose and extension of the authorization shall follow from the ensuing articles.
Article 2
Relationship with the right to information
Within the framework of the responsibility of service providers, the Government is hereby granted authorization to regulate the relationship between the provision of network content association services and the right to information, determining distinctive criteria among the references representing the exercise of the right to information and the ones representing indirect appropriation of the unlawful content of the site to which the references are made.
Article 3
Out-of-court dispute settlement
1 – The Government is hereby granted authorization to establish the principle of acceptability of the network operation of out-of-court schemes for dispute settlement between the information society service providers and recipients, without prejudice to the solution of the dispute under a common procedure.
2 – The Government may also assign administrative entities the provisional dispute settlement on network content lawfulness, without prejudice to a definitive solution to the dispute under a common procedure or through the recourse of interested parties to the available judicial remedies, along with the administrative means.
3 – The Government may further establish swift judicial mechanisms to settle disputes arising from the information society.
Article 4
Sanctions
1 – The Government is hereby granted authorization to determine as an administrative offence the disregard of measures hereby established.
2 – The Government may also:
a) Make provision for two breach categories, corresponding to fines of a maximum of (Euro) 50 000 or from (Euro) 600 to 100 000, depending on the seriousness of the offence;
b) Take the necessary measures to ensure that negligence is punishable;
c) Make provision for the one-third aggravation of the fine’s maximum and minimum limits, where the offence has been committed by a legal person or similar;
d) To establish supplementary sanctions such as the publicizing of the definitive decision, the loss of goods which are instruments of an offence, the prohibition from carrying out the activity for a six-year period, and, moreover, where natural persons are concerned, the restriction against holding social positions in undertakings which are service providers of the information society, for the same length of time;
e) To establish that the unauthorized exercise of the activity, where required, shall have as a supplementary sanction the prompt closure of the establishment, along with the prohibition on practising the activity.
3 – The Government may determine that the amount of the fines charged shall revert to the State and to the entity responsible for the fine application, at 60% and 40%, respectively.
Article 5
Sanction proceedings and application
1 – The Government may assign administrative entities the following tasks:
a) Investigating breach proceedings and imposing the respective fines;
b) Applying provisional measures such as the activity suspension and establishment closure;
c) Determining as a provisional measure the seizure of goods used for the commitment of the offence;
d) Introducing, amending or lifting these measures at any time, on its own initiative or at the request of interested parties.
2 – The measures referred to in the preceding paragraph shall be subject to challenge in court.
3 – The application of the supplementary sanctions of the prohibition from carrying out the activity and, where natural persons are concerned, the restriction against holding social positions in undertakings which are service providers of the information society, provided for in points d) and e) of paragraph 2 of article 4, for more than a two-year period shall be confirmed in court, without suspensive effect, on the initiative of the supervising entity applying the sanctions.
Article 6
Duration
This legislative authorization shall expire 180 days from its entry into force.
Approved on 20 March 2003.
The President of the Assembly of the Republic, João Bosco Mota Amaral.
Promulgated on 16 April 2003.
Let it be published.
The President of the Republic, Jorge Sampaio.
Counter-signed on 23 April 2003.
The Prime Minister, José Manuel Durão Barroso.
