The Council of Ministers last 31 October approved the Decree-Law which, by using the legislative authorisation granted by Law no. 7/2003 of 9 May, transposes into national law Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, concerning certain legal aspects of information society services, particularly electronic commerce, in the internal market. The deadline for transposition of this Directive into national law was 17 January 2002; its implementation was thus substantially delayed in comparison with most of the other European Union member States.
The transposition measure now approved does not discipline the entire legal regime for electronic commerce; its scope is rather limited to certain aspects of information society services and of its providers. It also regulates the subject of the unsolicited communications, commonly known as spam, transposing to that end article 13 of Directive 2002/58/EC of 12 July 2002, concerning the processing of personal data and privacy protection in the electronic communications sector.
The transposition work was carried out by the Office of Legislative Policy and Planning of the Ministry of Justice, under the co-ordination of Professor José de Oliveira Ascensão. The drafting of this measure was the object of heated controversy and doctrinal differences, justified due to the particular sensitiveness of some of the topics up for regulation.
At community level, various options were followed in legislative policy regarding the subject of electronic commerce. Some countries chose to concentrate in one single instrument a large number of dispersed regulations in the information society context. In Portugal, it was decided to avoid more complex and ambitious options for regulating the sector in question, a solution that in any case would not be in line with the time constraints for the relevant transposition. To this end, the measure?s scope is basically that of the Directive; nevertheless, it goes beyond its scope, namely where it regulates the liability of intermediary providers of content aggregation services and unsolicited communications.
The measure generally regulates the provision of information society services, the conditions for the non-liability of the so-called intermediary service providers with regard to the content of the information they make available, unsolicited communications and electronic contracting, and also establishes the relevant sanctions framework and creates a preliminary dispute settlement mechanism to settle questions that may arise about the lawfulness of content available online.
In the scope of this measure, ANACOM is called upon to fulfil the duties of central supervisory body, with powers in all domains regulated therein, and of sectorial supervisory body in the area under its tutelage. In this context, ANACOM will be faced, among others, with new functions at the level of regulation, supervision, inspection and investigation, disputes and information; the matter in question surpasses the traditional scope of this Authority?s powers as the national regulator of telecommunications and postal services.
