Unsolicited communications

Unsolicited communications are governed by the legal regime laid down by Law no. 41/2004 of 18 August, as amended by Law no. 46/2012https://www.anacom.pt/render.jsp?contentId=1138221 of 29 August.

According to article 13a of this law, the sending of unsolicited communications for direct marketing purposes, namely the use of automated calling and communication systems without human intervention (automatic calling machines), facsimile machines or electronic mail, including SMS, EMS and MMS and other kinds of similar applications, is subject to prior and explicit consent of a subscriber, where a natural person, or of a user.

This rule does not apply to subscribers who are legal persons; unsolicited communication to such users for direct marketing purposes are allowed, except where subscribers affirm their unwillingness to receive future communications. This unwillingness is expressed by their inclusion in a national list of legal persons who do not wish to receive unsolicited communications for direct marketing purposes, kept updated by DGC - Direção-Geral do Consumidor (Directorate General for the Consumer).

Nevertheless, in accordance with Personal Data Protection Lawhttps://www.anacom.pt/render.jsp?contentId=976192, provider of a given product or service is permitted to make use of the electronic contact details of its customers for direct marketing of its own similar products or services where the customer’s email contact details have been obtained from the customer upon the sale of a product or a service. This permission is subject to customers being given a clear and distinct opportunity to object to their electronic contact details being used for this purpose. Customers must be given opportunity to make this objection free of charge and in an easy manner: a) at the time that this data is collected and b) on the occasion of each message, in case the customer has not initially refused such use.

Monitoring compliance with the legal regime governing unsolicited communications is the responsibility of Comissão Nacional de Proteção de Dados (National Data Protection Commission).

Meanwhile, ANACOM makes the fight against unsolicited communications a priority, with a view to the following:

  • increasing citizen confidence in electronic communications;
  • the protection of citizens when conducting e-commerce transactions.

The global trends occurring in this regard have also caused concern at the European Commission (EC), which has called for action to combat spam by each Member State of the European Union (EU) and for cooperation between Member States and between Member States and third countries. The EU's position is made clear in the Commission Communication "On Fighting spam, spyware and malicious software":

''From a mere nuisance, unsolicited email has become increasingly fraudulent and criminal in nature. A prominent example is the use of phishing emails that lure end-users into giving up sensitive data via imitation websites purporting to represent genuine companies, raising concerns about possible identity fraud and damage to companies' reputations.

The dissemination of spyware by email or through software to track and report a user's on-line behaviour continues to increase. Spyware may also collect personal information such as passwords and credit card numbers.

The sending of massive amounts of unsolicited e-mail is greatly facilitated by the spread of malicious codes such as worms and viruses. Once installed, they allow an attacker to take over control of an infected computer system and turn it into a botnet, hiding the identity of the real spammer. Botnets are employed by spammers, phishers, and spyware vendors for fraudulent and criminal purposes''.