Ministério da Justiça (Ministry of Justice)
Decree-Law
(This is not an official translation of the law)
1 - This statutory instrument aims mainly at transposing Directive 2000/31/EChttps://www.anacom.pt/render.jsp?contentId=107558 of the European Parliament and of the Council of 8 June 2000. The directive on electronic commerce, notwithstanding the designation, does not regulate electronic commerce to the full extent: wide areas are left open, either because they are part of the contents of other directives, or because they were not deemed to be sufficiently consolidated for a Community harmonisation or rather because such harmonisation is not required. On the other hand, it governs issues such as contracts concluded by electronic means, the regulation of which only makes sense as a matter under ordinary law and not just under commercial law.
In the task of transposing, the legislator opted to put aside more wide and ambitious solutions for the regulation of the sector under consideration, and adopted an instrument the scope of which is mainly that of the directive. Even so, the opportunity was taken, in addition, to address some issues not governed by the directive, which required regulation in the Portuguese legal order.
The transposition presents the difficulty of reconciling neutral categories that are peculiar to a directive, which consists of a concentrate of different legal systems, with the frameworks in force in our legal order. The conciliation between the compliance with the directive and the integration in the Portuguese categories was taken as far as possible, so that the implemented ruling is understandable to recipients. The directive’s own systematisation is thus altered and the concepts meet, where possible, the correspondent frameworks of the Portuguese law.
2 - The directive assumes contents of previous directives. Particularly important is the directive on contracts concluded at a distance, which has been already transposed to the Portuguese law by Decree-law no. 143/2001 of 26 April. It seems to be illustrative to declare explicitly the supplementary nature of the respective transposition instrument. The same can be said with regard to the directive concerning the distance marketing of consumer financial services, the transposition of which is currently under way.
One of the main purposes of the directive is to ensure the exercise of the freedom of establishment and the freedom to provide information society services in the European Union, despite the limitations laid out. The scheme adopted consists in making service providers subject to the legal order of the Member State where they are established. This was thus provided for, clarifying as mush as possible concepts that are expressed in general terms, though somewhat imprecise, such as “information society service”. This is understood as any service provided at a distance by electronic means, in the scope of an economic activity at the individual request of a recipient of services – which excludes sound or television broadcasting.
Recital 57) of Directive 2000/31/EC recalls that “the Court of Justice has consistently held that a Member State retains the right to take measures against a service provider that is established in another Member State but directs all or most of his activity to the territory of the first Member State if the choice of establishment was made with a view to evading the legislation that would have applied to the provider had he been established on the territory of the first Member State”.
3 - Another strong purpose of this directive is to determine the liability regime of intermediary service providers. The legislator aims more specifically at establishing the conditions of irresponsibility of these providers having regard to the possible illegal contents of messages they render available.
The first step is to declare the absence of a general obligation on the part of the intermediary service provider to monitor the information that they transmit or store, or to which they provide access. A list of the common duties of all intermediary service providers is also presented.
The legislator has followed the ruling of the specific liability regime of the activities provided by the directive itself: “mere conduit”, “caching” and “hosting”. The opportunity was taken to provide also for the situation of intermediary providers of network content association services (such as search engines and hyperlinks), which assimilates the regime established for providers of hosting services.
The resource to schemes for the provisional settlement of disputes that arise regarding the lawfulness of contents available on the network is introduced, having regard to the urgent nature that a settlement prima facie may present. This task is assigned to the respective supervision entity, without prejudice to the final decision of the dispute, which shall be a court decision.
4 - The directive also regulates the so-called commercial communications. It seems preferable to consider “network advertising communications”, bearing in mind that only the advertising activity is concerned. In this scope the issue of unsolicited communications arises, left open to a wide extent by the directive. The approval in the meantime of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), the transposition of which is yet to be accomplished, was taken into account. Article 13 of this directive concerns unsolicited communications, establishing that messaging for the purposes of direct marketing are only authorized with regard to recipients who have given their prior consent. The system established is inspired thereupon. Within this context, this statutory instrument also represents the partial transposition of that directive as far as article 13 (unsolicited communications) is concerned.
5 - The conclusion of contracts by electronic means is the most delicate matter of this directive. It is explicitly stated that the provisions apply to all types of contracts, whether they are deemed or not as commercial contracts. The principle implemented it that of the free resource to electronic means, so that the law does not create obstacles, with the exceptions pointed out. For this purpose, whatever opposes to the conclusion of the contracts should be excluded. The written form requirement was deemed particularly important. The wording used in article 4 of the Securities Code, which is broad and independent of technical considerations, is taken up: declarations issued by electronic means shall meet the legal requirement of written form where they present the same guaranties of reliability, understandability and storage.
Another very critical issue is that of the moment of conclusion of the contract. The directive does not rule it, as it does not aim to harmonize civil law. Member States have taken very different positions. The legal significance of the acknowledgement of receipt is here under consideration in particular, as it may be deemed or not as acceptance.
The last position mentioned is adopted, being that of the majority, as the acknowledgement of receipt is intended to ensure the effectiveness of the electronic communication only, rather than to express a negotiating position. Nonetheless, it is also clarified that the online provision of products or services is deemed as a contract offer or invitation to treat, whether it includes or not all the necessary particulars for the contract to be concluded through the mere acceptance of the recipient.
The legislator aims also at regulating the conclusion of contracts by means of computers, that is, the fully automatic conclusion of contracts, without human intervention. It is established that to such contracts shall apply the common regime, except in cases where such regime suggests an action (human action). The framework for the application of the provisions on mistake is also determined.
6 - Having regard to the fact that the directive provides for the use of schemes for the out-of-court settlement of disputes, including through the adequate electronic channels, the legislator had to find the appropriate way to transpose this principle.
The several functions assigned to public entities advise the option for supervision entities. Where the responsibility is not upon special entities, an entity of central supervision shall operate: this task is performed by ICP-ANACOM. Supervision entities have functions in the fields of the investigation of breach proceedings, which are provided for, as well as to apply the respective fines.
The amount of the fines is set at very broad limits, in order to be discouraging, but at the same time, to adapt to the variety of situations that may arise.
Additional sanctions may be associated to the breaches; however, the more serious additional sanctions shall be confirmed by court order, on the supervision entity’s own motion. Provisional measures are provided for, and are to be applied by the responsible supervision entity, which may determine, modify or lift them at any moment.
Lastly, this statutory instrument intends also to allow the resource to schemes for the out-of-court settlement of disputes that arise in this field, avoiding impediments brought forth by general legislation, namely to the settlement of such disputes by electronic means.
The following entities were consulted: the National Committee for Data Protection, ICP-ANACOM, the Bank of Portugal, the Portuguese Securities Market Commission, the Insurance Institute of Portugal, the Innovation and Knowledge Mission Unit, the Consumer Institute, the Portuguese Association of Consumer Protection, the Portuguese Phonographic Association and the Portuguese Society of Authors.
Therefore:
In the use of the legislative authorization granted by article 1 of Law no. 7/2003 of 9 May, and pursuant to points a) and b) of article 198 of the Constitution, the Government hereby decrees the following:
CHAPTER I
Subject matter and scope
Article 1
Subject matter
The present statutory instrument transposes to the national legal system Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) as well as article 13 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).
Article 2
Scope
1. The following issues are outside the scope of this statutory instrument:
a) The field of taxation;
b) The competition regulation;
c) The processing of personal data and privacy protection regimes;
d) Legal aid;
e) Games of chance, lotteries and betting transactions, which involve wagering a stake with monetary value;
f) The activities of notaries or equivalent professions to the extent that they are characterized by public faith or other manifestations of public authority.
2. The present statutory instrument does not affect measures taken at Community or national level, in the respect of Community law, in order to promote cultural and linguistic diversity and to ensure the defence of pluralism.
CHAPTER II
Information society service providers
Article 3
Principle of freedom of exercise
1. “Information society services” shall mean any service provided at a distance by electronic means, for remuneration or at least in the scope of an economic activity at the individual request of a recipient of services.
2. The services listed in the annex to Decree-Law no. 58/2000 of 18 April shall not be deemed as information society services, except in respect of services provided for in points c), d) and e) of article 1 of that annex.
3. The activity of an information society service provider shall not be subject to prior authorisation.
4. Paragraph 3 shall be without prejudice to the provisions in the field of telecommunications services, as well as to all authorisation schemes that are not specifically and exclusively targeted at information society services.
5. The provisions of the present statutory instrument shall not exclude the application of compatible legislation in force, namely as regards the regime of distance contracts, and shall be without prejudice to the level of consumer protection, investors included, that results from the remaining national legislation.
Article 4
Service providers established in Portugal
1. The information society service providers established in Portugal shall be subject to a full extent to the Portuguese law on the activity exercised, even regarding information society services provided in another Community country.
2. A service provider that carries on an economic activity in the country through a fixed establishment is deemed to be established in Portugal whatever the location of the headquarters, whereas the mere availability of the technical means required to provide the service shall not be deemed to constitute, in itself, a fixed establishment.
3. Where a provider has several places of establishment, he is considered to be established, for the purposes of paragraph 1, in the place where he has the centre of his activities relating to the information society service.
4. Intermediary networking service providers who wish to pursue steadily the activity in Portugal shall previously register with the central supervisory entity.
5. “Intermediary networking service providers” shall mean the providers that render technical services for the access, availability and use of online information or services, which are independent of the generation of the information or service themselves.
Article 5
Freedom to provide services
1. To information society service providers not established in Portugal but rather in another Member State of the European Union shall apply, exclusively as regards online activities, the law of the place of establishment:
a) To providers themselves, namely concerning such requirements as qualifications, authorisations, notifications, identification and liability;
b) To the pursuit of the activity, namely concerning such requirements as the quality or content of the services, to advertising and to contracts.
2. The services referred in the preceding paragraph shall be freely provided, with the limitations provided for in the following articles.
3. Services of an extra-Community origin shall be subject to the general application of the Portuguese law, and also to this statutory instrument in all matters that are not justified by the specificity of intra-Community relationships.
Article 6
Exclusions
The following issues are outside the scope of application of articles 4, paragraph 1 and 5, paragraph 1:
a) Intellectual property, including the protection of databases and of topographies of semiconductor products;
b) Issuance of electronic money, by effect of the waiver provided for in paragraph 1 of article 8 of Directive 2000/46/EC;
c) Advertising pursued by undertakings for collective investment in transferable securities, pursuant to paragraph 2 of article 44 of Directive 85/611/EEC;
d) Insurance business, as regards compulsory insurance, extent and conditions of the authorization of the insurance entity and firms in difficulty or in irregular situation;
e) Subject matters regulated by legislation chosen between the parties, using their private autonomy;
f) Contracts made with consumers, as regards the obligations arising under those contracts;
g) The validity of contracts concerning rights in real estate where such contracts are subject to mandatory formal requirements;
h) The permissibility of unsolicited commercial communications by electronic mail.
Article 7
Restrictive measures
1. The courts and other competent entities, namely the supervision entities, are entitled to restrict the freedom of movement of a given information society service from another Member State of the European Union where it seriously damages or threatens to damage:
a) Human dignity or public policy, including the protection of minors and the fight against any incitement to hatred for reasons of race, sex, religion or nationality, namely on grounds of the prevention of, or combat against, crimes or offences against public policy;
b) Public health;
c) Public security, namely the safeguarding of national security and defence;
d) Consumers, including investors.
2. The restrictive measures shall be preceded by:
a) The request made to the Member State of origin of the service provider to take measures to end the situation;
b) A notification to the Commission and the Member State of origin of the intention to take the restrictive measures, where that Member State has not done so, or the measures taken are deemed inappropriate.
3. The provision of the preceding paragraph is without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal or an offence against public policy investigation.
4. The measures shall be proportionate to the safeguarded interests.
Article 8
Action in the case of urgency
In the case of urgency, the competent entities are entitled to take restrictive measures, not preceded by notifications to the Commission and to the other Member States of origin, provided for in the preceding article.
Article 9
Communication to the central supervisory entity
1. The competent entities that wish to promote a request to the Member State of origin to take measures to end the infringing situation shall communicate it to the central supervisory entity, in order for such request to be notified to the Member State of origin.
2. The competent entities that wish to take restrictive measures, or that effectively take them, shall communicate it immediately to the central supervisory authority, in order for such measures to be promptly notified to the Commission and to the Member States of origin.
3. As regards urgent restrictive measures, the reasons for the urgency shall also be mentioned.
Article 10
Permanent provision of information
1. Service providers shall permanently render online, in conditions that allow an easy and direct access, complete identification particulars that include namely:
a) Name or trade name;
b) The geographic address at which the service provider is established and the electronic mail address, which allow him to be contacted directly ;
c) Registration of the service provider with public registry offices and relevant registration numbers;
d) Tax identification number.
2. Where the provider pursues an activity that is subject to a prior authorisation scheme, he shall render available the particulars regarding the entity that granted such authorisation.
3. Where the provider pursues a regulated profession, he shall indicate the professional title and the Member State where it has been granted, the professional body with which the service provider is registered, and also make a reference to the applicable professional rules that regulate the access to, and exercise of, that profession.
4. Where the services provided involve costs to the recipients in addition to the telecommunication service costs, tax and delivery costs included, such costs are to be indicated clearly and prior to the use of the services.
CHAPTER III
Liability of networking service providers
Article 11
Principle of assimilation
The liability of online service providers is subject to the common regime, namely in case of content aggregation, with the specifications arising from the following articles.
Article 12
Absence of a general obligation to monitor on the part of intermediary service providers
Online intermediary service providers are not under the general obligation to monitor the information that they transmit or store, nor to investigate possible offences practised within their scope.
Article 13
Common duties of intermediary service providers
The following obligations towards the competent authorities fall upon intermediary service providers:
a) to inform them promptly when becoming aware of illegal activities undertaken via services rendered;
b) to meet requests for the identification of recipients of their services with whom they have entered into storage agreements;
c) to comply promptly with the instructions aiming to terminate or prevent an offence, namely to remove or disable access to a given information;
d) to supply lists of owners of hosted websites, where requested.
Article 14
«Mere conduit»
1. Where the intermediary service provider only pursues an activity that consists of the transmission of information in a communication network, or the provision of access to a communication network, not having initiated the transmission, nor modified the contents of the messages transmitted, nor selected either the information or the receivers, he shall not be liable for the information transmitted.
2. The exemption from liability shall also apply to the mere technological storage of the information transmitted, in so far as this takes place for the sole purpose of carrying out the transmission and provided that the information is not stored for any period longer than is necessary for the transmission.
Article 15
«Caching»
1. The intermediary provider of networking communication transmission services that does not modify the contents of the messages transmitted, nor selects either the information or the receivers, and that complies with the conditions on access to the information, shall not be liable for the automatic and temporary storage of that information, performed for the sole purpose of making more efficient and economical the information's onward transmission to recipients of the service upon their request.
2. The common regime of liability shall apply, nevertheless, where the provider does not comply with the usual rules of the sector regarding:
a) the updating of the information,
b) the use of technology, to obtain data on the use of the information.
3. The common rules shall also apply where the provider has obtained actual knowledge of the fact that the information has been removed from its initial source or access to it has been disabled, or that a court or an administrative authority with powers upon the provider who has originated the information has ordered an immediate enforcement action towards such removal or access disablement, and the provider does not act expeditiously to remove or disable access to the information.
Article 16
Hosting
1. The intermediary provider of the server storage service shall only be liable for the information stored, under the common rules, where he has knowledge of an obviously illegal activity or information and does not act expeditiously to remove or to disable access to such information.
2. The service provider shall be civilly liable where, faced with his knowledge of circumstances, he is or should be aware of the illegal nature of the information.
3. The common rules on liability shall apply where the recipient of the service is acting under the authority or the control of the provider.
Article 17
Liability of intermediary providers of content aggregation services
Intermediary providers of network content aggregation services, by means of search engines, hyperlinks or similar procedures that allow access to illegal contents, shall be subject to the liability regime that corresponds to that established in the preceding article.
Article 18
Preliminary dispute settlement
1. In the cases provided for in articles 16 and 17, the intermediary service provider is not bound to remove the disputed contents or to disable access to the information on the grounds of a claim made by an interested party, where the illegality is not obvious.
2. In the cases provided for in the preceding paragraph, any interested party may appeal to the relevant supervisory entity, that shall present a preliminary settlement within forty-eight hours and notify it immediately to all those involved by electronic means.
3.Whoever has a legal interest in maintaining that content online is likewise entitled to appeal to the supervisory entity against a decision of the provider to remove or disable the access to that content, in order to obtain a preliminary dispute settlement.
4. The procedure before the supervisory entity shall be the object of further specific regulation.
5. The supervisory entity may alter at any time the preliminary settlement of the dispute.
6. Whatever the decision may be, the supervisory entity shall not be held liable; likewise, the intermediary service provider shall not be liable for having or not having removed the contents or disabled the access based on a mere request, where the illegality is not obvious.
7. The final dispute settlement shall be carried out via the common procedures.
8. The recourse to these procedures is without prejudice to the use by interested parties, at the same time, of the common judicial means.
Article 19
Relationship with the right to information
1. Content aggregation shall not be deemed irregular on the grounds that there are illegal contents in the destination website, despite the awareness of this fact by the provider.
2. The link is legal if performed with objectivity and remoteness, and represents a way of exercising the right to information; notwithstanding, it shall be illegal where it consists of a way of adopting the illegal content being linked to as one’s own.
3. The assessment shall be made having regard to the circumstances of the case, namely:
a) the possible confusion of the contents of the origin and destination websites;
b) the automatic or intentional character of the link;
c) the area of the destination website to which the link is made.
CHAPTER IV
Network advertising communication and direct marketing
Article 20
Scope
1. The following do not constitute network advertising communications:
a) Messages that are limited to the identification of, or that allow the access to, an economic operator, or that objectively identify goods, services or image of an operator, in directories or lists, particularly when this is without financial implications, although the messages may be integrated in services of the information society;
b) Messages aiming to promote ideas, principles, initiatives or institutions.
2. The advertising communication may have as a sole purpose the promotion of the image of an operator pursuing a commercial, industrial or craft activity or exercising a regulated profession.
Article 21
Identification and information
In advertising communications provided at a distance by electronic means, the following particulars shall be clearly identifiable, so that they are easily understandable by a common recipient:
a) The advertising nature, as soon as the message is presented at the terminal and in an ostensive manner;
b) The advertiser;
c) Promotional offers, such as discounts, premiums or gifts, and promotional competitions or games, as well as the conditions to which they are subject.
Article 22
Unsolicited communications
1. Messaging for the purposes of direct marketing, the receipt of which is independent of the intervention of the recipient, namely through automatic calling machines, facsimile machines or electronic mail, is subject to the prior consent of the recipient.
2. Messaging to legal persons is excepted; notwithstanding, recipients are entitled to recourse to the opt-out system.
3. The supplier of a product or service is also entitled, as regards the same products or services or similar, to send unsolicited advertising to clients with whom he has made previous transactions, provided that the client has explicitly been given the opportunity to object to such messaging on the occasion of the transaction, and that there shall not be any charges for the recipient in addition to the telecommunication service cost.
4. In the cases provided for in the preceding paragraphs, the recipient shall be granted access to the appropriate means that allow him to refuse at any time the messaging of advertising in the future, freely and without cause.
5. The practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the person on whose behalf the communication is made shall be prohibited.
6. Each unsolicited communication shall indicate an address and an electronic technical means, easy to identify and to use, that allow the recipient of the service to refuse future communications.
7. Entities that undertake the messaging of unsolicited advertising communications, the receipt of which is independent of the intervention of the recipient, shall 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.
8. The messaging of advertising communications by electronic means to the persons included in the lists provided for in the preceding paragraph shall be prohibited.
Article 23
Regulated professions
1. Advertising communications provided at a distance by electronic means in the scope of regulated professions are permitted subject to strict compliance with the rules on professional ethics of each profession, regarding, in particular, the independence and honour of the profession, professional secrecy and loyalty towards clients and other members of the profession.
2. «Regulated professions» shall have the meaning provided for in the statutory instruments regarding the recognition of professional qualifications in the European Union.
CHAPTER V
Contracts concluded by electronic means
Article 24
Scope
The provisions in this chapter shall apply to all types of contracts that are concluded by electronic means or by means of a data-processing technique, whether or not they are deemed as commercial contracts.
Article 25
Freedom to conclude contracts
1. Contracts shall be freely concluded by electronic means, and their effectiveness or validity shall not be prejudiced on account of the use of that means.
2. The following contracts shall be excluded from the principle of freedom:
a) Contracts governed by family law or by the law of succession;
b) Contracts requiring the involvement of courts, public entities or other entities exercising public authority, in particular where such involvement is a condition for such contracts to have an effect with regard to third parties, as well as contracts required by law to be certified or authenticated by a notary;
c) Contracts concerning rights over real estate, except for rental rights;
d) Contracts of suretyship granted and on collateral securities, where they are not part of the professional activity of the person who provides them.
3. Only those who have agreed to do so shall be bound to use electronic means to conclude a contract.
4. General contract conditions that impose electronic means for the conclusion of contracts with consumers shall be prohibited.
Article 26
Form
1. Declarations issued by electronic means shall meet the legal requirement of written form where they are contained in a support that presents the same guaranties as regards reliability, understandability and storage.
2. The electronic document shall be deemed to be a signed document where it meets the requirements set by the legislation on electronic signature and certification.
Article 27
Devices for identifying and correcting errors
The networking service provider that concludes contracts by electronic means shall render available to the recipients of the service, except when otherwise agreed by parties who are not consumers, the effective technical means for identifying and correcting input errors prior to the placing of the order.
Article 28
Prior information
1. The networking service provider that concludes contracts by electronic means shall render available, prior to the order being placed by the recipients of the service, the minimum unambiguous information that shall include:
a) The technical steps to follow to conclude the contract;
b) Whether or not the concluded contract will be filed by the service provider and whether it will be accessible for the recipient;
c) The language or languages offered for the conclusion of the contract;
d) The technical means rendered by the provider for identifying and correcting input errors which may be contained in the placing of the order;
e) Contract terms and general conditions of the contract to be concluded;
f) Codes of conduct to which the provider is a subscriber and information on how those codes can be accessed electronically.
2. The provision of the preceding paragraph may be derogated when otherwise agreed by parties who are not consumers.
Article 29
Placing of the order and acknowledgement of receipt
1. Where the service provider receives an order placed exclusively through electronic means, he shall promptly acknowledge its receipt by electronic means, except when otherwise agreed with the party who is not a consumer.
2. In cases where there is an immediate on-line provision of the product or service, the acknowledgement of receipt shall be dispensed with.
3. The acknowledgement of receipt shall include the essential identification of the contract concerned.
4. The provider shall meet the duty to acknowledge receipt where the communication is sent to the electronic mail indicated or used by the recipient of the service.
5. The order shall be deemed final upon being confirmed by the recipient, following the acknowledgement of receipt.
Article 30
Contracts concluded by individual communications
Articles 27 to 29 shall not apply to contracts concluded exclusively by exchange of electronic mail or by equivalent means of individual communication.
Article 31
Presentation of contract terms and general conditions
1. Contract terms and general conditions, as well as the acknowledgement of receipt, shall be made available to the recipient in a way that allows him to store and reproduce them.
2. The placing of the order, the acknowledgement of receipt and the order confirmation are deemed to be received as soon as the recipients are able to access them.
Article 32
Contract offer and invitation to treat
1. The online offer of products or services shall be deemed as a contract offer where it includes all the necessary particulars for the contract to be concluded through the mere acceptance of the recipient; otherwise, it shall represent an invitation to treat.
2. The mere acknowledgement of receipt of the order has no legal significance for the determination of the moment of conclusion of the contract.
Article 33
Contracts concluded without human intervention
1. Contracts concluded exclusively by means of computers, without human intervention, shall be subject to the common regime, except in cases where such regime suggests an action.
2. Provisions on mistake shall apply regarding:
a) The formation of intention, where there is a programming error;
b) The statement of intention, where the machine is malfunctioning;
c) The transmission, where the message reaches its destination with errors.
3. The other party shall not oppose the appeal presented on grounds of mistake, where he ought to be aware of the mistake, namely through the use of devices for identifying input errors.
Article 34
Dispute settlement by electronic means
The functioning of online schemes for the out-of-court settlement of disputes between information society service providers and recipients shall be permitted, provided that the provisions on document validity set out in this chapter are complied with.
CHAPTER VI
Supervisory entities and sanctions
Article 35
Central supervisory entity
1. A central supervisory entity is hereby established, with powers in all fields regulated by this statutory instrument, except for the issues under the sectorial powers of another entity, pursuant to special law.
2. The functions of the central supervisory entity are assigned to ICP – National Communications Authority (ICP-ANACOM).
Article 36
Powers and responsibility
1. Supervisory entities shall act as reference bodies for contacts made within its area, supplying information to recipients, service providers and the general public, where requested.
2. In addition to the general powers provided for above, and to functions specifically assigned, supervisory entities shall have the power:
a) To adopt the restrictive measures provided for in articles 7 and 8;
b) To establish regulations and to give instructions on practises to be followed in to order to comply with the provisions of this statutory instrument;
c) To monitor the compliance with the rules on electronic commerce;
d) To order the opening of breach proceedings and to carry on the respective investigation, as well as to apply the sanctions provided for;
e) To determine the suspension of the activity of service providers in view of serious irregularities and on grounds of urgency.
3. The central supervisory entity is responsible for all matters conferred by law to an administrative body without a further specification, and for matters specifically assigned.
4. It is namely incumbent upon the central supervisory entity, in addition to the general powers provided for above, where such functions are not incumbent upon other bodies:
a) To publish online the most significant code conducts it has knowledge of;
b) To publish other information, namely court decisions on this field;
c) To promote the communications to the European Commission and to the Member State of origin provided for in article 9;
d) In general, to act as an entity of permanent contact with other Member States and with the European Commission, without prejudice to responsibilities assigned to other sectorial supervisory entities.
Article 37
Breaches
1. The following irregularities committed by service providers shall constitute breaches liable to a fine from € 2500 to € 50 000:
a) Failure to render available or to provide to recipients the information provided for in articles 10, 13, 21, 22, paragraph 6, and 28, paragraph 1, of this statutory instrument;
b) Messaging of unsolicited communications, in violation of the legal requirements provided for in article 22;
c) Failure to render available to recipients, where due, the devices for identifying and correcting input errors, as provided for in article 27;
d) Failure to promptly acknowledge the receipt of order provided for in article 29;
e) Failure to communicate contract terms, general conditions, and acknowledgement of receipt, provided for in article 31, in a way that allows the recipient to store and reproduce them;
f) Failure to provide information requested by the supervisory entity.
2. The following irregularities committed by service providers shall constitute breaches liable to a fine from € 5000 to € 100 000:
a) Non-compliance with the instruction of the supervision entity or other responsible entity aiming to identify the recipients of their service with whom they have transmission or storage agreements, as provided for in point b) of article 13;
b) Non-compliance with the instructionof the court or of the responsible authority aiming to terminate or prevent an offence, pursuant to point c) of article 13;
c) Failure to inform the responsible authority of illegal activities undertaken via services rendered that come to their knowledge, as provided for in point a) of article 13;
d) Failure to remove or to disable access to the stored information, where they have actual knowledge of its obvious illegal nature, as provided for in articles 16 and 17;
e) Failure to remove or disable access to the stored information, where, pursuant to article 15, paragraph 3, they have obtained actual knowledge of the fact that the information has been removed from its initial source of the transmission, or access to it has been disabled, or that a court or an administrative authority of origin has ordered an immediate enforcement action towards such removal or access disablement;
f) Recurrence of offences provided for in paragraph 1.
3. The provision of content association services, under the conditions of point e) of paragraph 2 shall constitute breach liable to a fine from € 2 500 to € 50 000, where service providers do not disable the location or the access to the illegal information.
4. Negligence shall be punishable within the limits of the fine applicable to offences provided for in paragraph 1.
5. Where the offence is committed by a legal person, the fine shall be aggravated to one-third in respect of both its maximum and minimum amount.
Article 38
Additional sanctions
1. The confiscation in favour of the State of goods that have been used for committing the offence may apply as an additional sanction to breaches provided for above.
2. Having regard to the seriousness of the offence, the fault of the offender or the recurrence of the offence, the interdiction to pursue the activity for a maximum period of six years, and, concerning natural persons, disqualification from management positions in enterprises that provide information society services, for the same length of time, may apply as an additional sanction, together with the fines provided for in paragraph 2 of the preceding article.
3. The application of the additional sanction measures of interdiction to pursue the activity and, concerning natural persons, disqualification from management positions in enterprises that provide information society services, for more than two years, shall be decided by court order, on the the supervisory entity’s own motion.
4. Penalties applied for breaches committed, as well as additional sanctions applied pursuant to this statutory instrument, may be given publicity as appropriate.
Article 39
Provisional measures
1. The supervisory entity responsible for the application of fines is entitled to determine the following provisional measures, if such measures prove to be immediately necessary:
a) The suspension of the activity and the closure of the establishment that supports those information society services, during the course of the proceedings and up to the final decision;
b) Confiscation of the goods by means of which the offence is committed.
2. These measures may be determined, modified or lifted at any moment by the supervisory entity, on its own motion or at the request of interested parties, and the legality thereof may be contested in court.
Article 40
Fine reversion
The amount of the fines collected shall revert to the State and to the entity that applied them at 60% and 40% respectively.
Article 41
Applicable rules
1. The established sanctionary regime is without prejudice to the special sanctionary regimes in force.
2. The entity responsible for the implementation, investigation and application of sanctions shall be either the central supervisory entity or the sectorial entities, according to the nature of the issues.
3. The general regime of breaches shall apply subsidiarily.
CHAPTER VII
Final provisions
Article 42
Codes of conduct
1. The supervisory entities shall encourage the drawing-up of codes of conduct by interested parties and their disclosure by electronic means.
2. The involvement of associations or organisations responsible for the protection of consumer interests shall be encouraged as regards the drafting and implementation of codes of conduct affecting their interests. Where appropriate to take account of their specific needs, associations representing the visually impaired and disabled or others should be consulted.
3. The codes of conduct shall be publicized on the network by the supervisory entities themselves.
Article 43
Appeal
The supervisory entities and the Public Prosecution Office are entitled to lodge an appeal in court against codes of conduct approved in matters included in the field covered by this statutory instrument, that go beyond the aims of the issuing entity or the contents of which do not comply with general principles or rules in force.
Checked and approved at the Council of Ministers of 31 October 2003. – José Manuel Durão Barroso – Maria Manuela Dias Ferreira Leite – Maria Teresa Pinto Basto Gouveia – Maria Celeste Ferreira Lopes Cardona - José Luís Fazenda Arnaut Duarte – Carlos Manuel Tavares da Silva – Maria da Graça Martins da Siva Carvalho.
Promulgated on 19 December 2003.
Let it be published.
The President of the Republic, JORGE SAMPAIO.
Counter-signed on 23 December 2003.
The Prime Minister, José Manuel Durão Barroso
