Decree-law no. 7/2004, establishing the legal regime for electronic commerce, has been published today. This 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).
This Decree-law defines the liability regime of Internet service providers as regards contents made available and transmitted. It is to be noted that the Portuguese legislator has innovated, by ruling the liability of intermediary providers of content association services.
This statutory instrument also determines, as a general rule, that all information society service providers are subject to the legal system of the Member State where they are established, and that the functions of central supervisory entity are assigned to ICP - National Communications Authority (ICP-ANACOM), with powers in all fields regulated by the mentioned statutory instrument (except for those fields under the sectorial powers of another entity, pursuant to special law).
ICP-ANACOM is exclusively responsible for the register of intermediary networking service providers and for the notification to the Commission and to Member States of restrictive measures.
The statutory instrument further establishes the resource to schemes for the out-of-court settlement of disputes 'that arise regarding the lawfulness of contents available on the network', having regard to the urgent nature of online procedures, notwithstanding the fact that the final decision of the dispute shall be a court decision.
This Decree-Law, transposing article 13 of Directive 2002/58/EC of 12 July 2002, carries out the unification of the regime of unsolicited commercial communications, commonly known as spam, that establishes the opt-in system for natural persons and the opt-out system for legal persons or in the context of a pre-existent relationship.
In the scope of the drawing up of this statutory instrument, 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.
Consult:
- Decree-Law no. 7/2004, of 7 January https://www.anacom.pt/render.jsp?contentId=976170
- Directive 2000/31/EC of the European Parliament and of the Council, of 08.06.2000 https://www.anacom.pt/render.jsp?contentId=985385
- Directive 2002/58/EC of the European Parliament and of the Council, of 12.07.2002 https://www.anacom.pt/render.jsp?contentId=985319
