Ministério das Obras Públicas, Transportes e Comunicações (Ministry for Public Works, Transport and Communications)
Decree-Law
Directive 98/84/EC of the European Parliament and of the Council of 20 November, on the legal protection of services based on, or consisting of, conditional access, established a general legal framework made necessary by the dissemination of services provided by digital technologies emerging at the time, which were deemed to contribute towards the increase of consumer choices and cultural pluralism.
In the opinion of the Community legislature, the need to ensure the economic viability of broadcasting and information society services, where they depended on the use of conditional access in order to obtain the remuneration of service providers, justified the adoption of specific measures to protect the latter against illicit devices which allowed access to these services free of charge. This Community provision was transposed to national law by means of article 10 of Decree-Law no. 287/2001, of 8 November, which declared all commercial activities concerning illicit devices to be breaches.
The referred provision was later integrated in article 104 of Law no. 5/2004, of 10 February - Electronic Communications Law - with an amendment: the legislator deemed it necessary to criminalize the manufacture, import, distribution, sale, rental or possession for commercial purposes of the referred devices, establishing a term of imprisonment of up to 3 years.
The penalty aggravation was based on the development of a parallel market that supplied illicit devices, which provided access to conditional access services without involving the respective operators and without the respective economic compensation.
Notwithstanding, the issue of a private action, not a commercial one, failed to be considered.
Experience teaches that effectiveness requires going further in the protection of services based on, or consisting of, conditional access, thus providing for a fairer and more transparent market competition. Directive 98/84/EC of the European Parliament and of the Council of 20 November states that sanctions adopted by Member States must be ''effective, dissuasive and proportionate'', providing also for the possibility of the ''application of any national provisions which may prohibit the private possession of illicit devices''.
At a time when the manner in which broadcasting and information society services are used are so diversified, benefiting from the great development of digital technologies and the improvement of terminals available for consumers, and taking into account that a parallel market of illicit devices continues to grow, in spite of all efforts on the part of public authorities, operators and manufactures, it is deemed necessary to punish also the end user for the acquisition, use, ownership or mere possession, for whatever reason, of illicit devices.
This amendment is justified on the grounds that not only the deterrent effect of measures adopted so far has proved to be insufficient to oppose the expansion of this illegal market but also because the user of this type of devices is perfectly aware nowadays that his/her conduct constitutes an infringement and that operators and other holders of rights protected by law, such as copyright and associated rights, are harmed.
Therefore:
Pursuant to point a) of paragraph 1 of article 198 of the Constitution, the Government hereby decrees as follows:
Article 1
Amendment to Law no. 5/2004, of 10 February
Articles 104, 113, 114 and 116 of Law no. 5/2004, of 10 February are hereby amended to read as follows:
«Article 104
[. . .]
1 - ...
a) ...
b) ...
c) ...
d) Private acquisition, use, ownership or mere possession, for whatever reason, of illicit devices by the acquirer, user, owner or holder, or a third party.
2 - ...
3 - ...
4 - ...
5 - ...
Article 113
[. . .]
1- ...
a) ...
b) ...
c) ...
d) ...
e) ...
f) ...
g) ...
h) ...
i) ...
j) ...
l) ...
m) ...
n) ...
o) ...
p) ...
q) ...
r) ...
s) ...
t) ...
u) ...
v) ...
x) ...
z) ...
aa) ...
bb) ...
cc) ...
dd) ...
ee) ...
ff) ...
gg) ...
hh) ...
ii) ...
jj) ...
ll) ...
mm) ...
nn) ...
oo) ...
pp) ...
qq) ...
rr) ...
ss) ...
tt) ...
uu) ...
vv) ...
xx) ...
zz) ...
aaa) ...
bbb) ...
ccc) ...
ddd) ...
eee) ...
fff) ...
ggg) ...
hhh) ...
iii) ...
jjj) ...
lll) ...
mmm) ...
nnn) ...
ooo) ...
ppp) ...
qqq) ...
rrr) ...
sss) Performance of actions mentioned in point d) of paragraph 1 of article 104;
ttt) [Former point sss).]
uuu) [Former point ttt).]
vvv) [Former point uuu).]
xxx) [Former point vvv).]
2 - Breaches provided for from point a) to rrr) and from point ttt) to xxx) of the preceding paragraph are liable to a fine from €500 to €3740 and from €5000 to €5 000 000, whether they respect natural or legal persons, respectively.
3 - The breach provided for in point sss) of paragraph 1is liable to a fine from €500 to €3740 and from €5000 to €44891.81, whether it respects a natural or a legal person, respectively.
4- [Former paragraph 3.]
5- [Former paragraph 4.]
6- [Former paragraph 5.]
Article 114
[. . .]
...
a) Loss to the State of objects, equipment and illicit devices, for breaches provided for in points qqq), rrr) and sss) of paragraph 1 of the preceding article;
b) ...
c) ...
Article 116
[. . .]
1 - Without prejudice to other applicable sanctions, in case of non-compliance with decisions of the NRA that impose administrative sanctions or that order, in exercising powers legally assigned, the adoption of certain behaviours or measures to companies providing electronic communications networks and services, the NRA may impose, where justified, a compulsory penalty payment, namely is cases referred in points a), e), f), g), p), v), x), z), gg), mm), pp), rr), ss), tt), zz), aaa), ccc), fff), hhh), lll), nnn), ttt), uuu) and xxx) of paragraph 1 of article 113.
2 - ...
3 - ...
4 - ...
5 - ...
6 - ...»
Article 2
Entry into force
This Decree-Law shall enter into force on the day following that of its publication.
Checked and approved in the Council of Ministers of 19 October 2006. - José Sócrates Carvalho Pinto de Sousa - Emanuel Augusto dos Santos-Alberto Bernardes Costa - Manuel António Gomes de Almeida de Pinho - Mário Lino Soares Correia.
Promulgated on 20 April 2007.
Let it be published.
The President of the Republic, ANÍBAL CAVACO SILVA.
Counter-signed on 23 April 2007.
The Prime Minister, José Sócrates Carvalho Pinto de Sousa.
