Assembleia da República (Assembly of the Republic)
Law
(This is not an official translation of the law)
Approves the Television Law, which regulates the access to and performance of the television activity
Pursuant to point c) of article 161 of the Constitution, the Assembly of the Republic hereby decrees the following:
CHAPTER I
General provisions
Article 1
Subject-matter
This law aims to regulate the access to and performance of the television activity, transposing into national law a part of the provisions of Council Directive no. 89/552/EEC, of 3 October, as amended by Directive 97/36/EC of the European Parliament and of the Council, of 30 June.
Article 2
Definitions
1 - For the purposes of this law:
a) “Television activity” shall mean the activity consisting in the organization, or selection and aggregation, of television programme services, for the purpose of their transmission and reception by the general public;
b) “Self-promotion” shall mean a form of advertising broadcasted by the television operator to promote its own products, services, television programme services or programmes, as well as cinematographic and audiovisual works in which it provided a financial contribution;
c) “Creative work” shall mean any cinematographic and audiovisual work based on structured creative elements, namely fiction or animation feature films and short films, documentaries, news reports, debates, interviews, television drama, TV series, music, artistic or cultural programmes, and didactic programmes or programmes with a didactic element;
d) “European work” shall mean any cinematographic and audiovisual work that meets requirements laid down in article 6 of Council Directive no. 89/552/EEC, of 3 October, as amended by Directive 97/36/EC of the European Parliament and of the Council, of 30 June;
e) “Distribution operator” shall mean the legal person responsible for the selection and aggregation of television programme services, as well as for their provision to the public, by means of electronic communications networks;
f) “Television operator” shall mean the legal person responsible for the organization of television programme services who is legally entitled to perform the television activity;
g) “Independent producer” shall mean the legal person whose main activity consists of the production of cinematographic and audiovisual works, provided that all the following conditions are satisfied:
i) Capital stock held at the most at 25%, directly or indirectly, by a television operator or at the most at 50% in the case of several television operators;
ii) Annual limit of 90% sales for the same television operator;
iii) Ownership of rights over produced works, with a clear contractual definition of the type and duration of broadcasting rights granted to television operators;
iv) Freedom in the way produced works are developed, namely as regards the choice of studios, actors, means and distribution;
h) “Television programme service” shall mean the sequence and uniform set of programming items provided by a television operator;
i) “Teleshopping” shall means direct offers broadcast to the public with a view to the supply of goods or services, in return for payment;
j) “Television” shall mean unencrypted or coded transmission of moving images with or without sound, through an electronic communications network, intended for simultaneous reception by the general public.
2 - The provision of point j) of the preceding paragraph does not cover:
a) Communication services operating on individual demand;
b) The mere retransmission of third party broadcasts;
c) The occasional transmission of events, by means of technical devices installed at places where such events take place, and intended for the public gathered there.
Article 3
Scope of application
1 - All television broadcasts transmitted by operators pursuing a television activity under the jurisdiction of the Portuguese State shall be subject to this law.
2 - Television operators, or, duly adapted, distribution operators, shall be deemed to be under the jurisdiction of the Portuguese where they meet criteria laid down in article 2 of Council Directive no. 89/552/EEC, of 3 October, as amended by Directive 97/36/EC of the European Parliament and of the Council, of 30 June.
Article 4
Competition and ownership concentration and openness
Television operators and distribution operators shall be subject to the general scheme for the protection and promotion of competition, namely as regards prohibited practices and concentration of companies, as well as to the legal scheme that governs the openness and concentration in media ownership.
Article 5
Public service
The State shall guarantee the existence and operation of a public television service, under chapter V.
Article 6
Principle of cooperation
1 - The Regulatory Entity for the Media shall promote and encourage the adoption of co-regulation, self-regulation and cooperation mechanisms between different television operators to achieve the objectives referred in the paragraph below.
2 - The State, the public service concessionaire and other television operators shall collaborate in the pursuit of values of human dignity, the rule of law, democratic society and national cohesion, and in the promotion of the Portuguese language and culture, taking into consideration the special needs of specific groups of viewers.
Article 7
Coverage areas
1 - Coverage by television programme services may be on an international, national, regional or local level, according to whether they are intended to cover, respectively:
a) Predominantly the territory of other countries;
b) The national territory in general, including the Autonomous Regions;
c) A group of districts in the mainland or a group of islands in the Autonomous Regions, or an island with several municipalities, or a metropolitan area;
d) A municipality or a group of neighbouring municipalities.
2 - The geographic area allocated to each television programme service shall be covered by the same programme and recommended signal, unless otherwise authorized by determination of the Regulatory Entity for the Media, without prejudice to the use of additional coverage resources, where it is duly authorized.
3 - The determination referred to in the preceding paragraph shall establish the hourly limit of broadcast interruptions up to the maximum of two hour per day, which may be extended in exceptional and duly substantiated situations, in the terms provided therein.
4 - Ratings referred to in this article are incumbent upon the Regulatory Entity for the Media and shall be established in the license or authorization document, without prejudice to its subsequent amendment at the request of interested parties, subject to the binding conditions for pursue of the activity, under article 21 hereof.
Article 8
Types of television programme services
1 - Television programme services may be general or thematic, and may contain a conditional access system or have a free-to-air basis; in this last case, television programme services may be unrestricted or subject to a subscription.
2 - General television programme services are deemed to be those that present a varied programming aimed at the general public.
3 - Thematic television programme services shall be deemed to be those that present a programming model focusing predominantly upon specific audio-visual matters or fields, or intended for a particular public.
4 - Thematic television programme services destined for self-promotion or teleshopping shall not involve any other conventional programme elements, such as news reports, sports, films, series or documentaries.
5 - Unrestricted free-to-air television programme services shall mean those that are made publicly available without any compensation, and free-to-air television programme services subject to a subscription shall mean those that are made publicly available in exchange for a consideration for the access to or use of the distribution infrastructure.
6 - Conditional access television programme services shall mean those that are made publicly available in exchange for a specific consideration, the amount due for the access to or use of the distribution infrastructure not being deemed as such.
7 - Ratings referred to in this article are incumbent upon the Regulatory Entity for the Media and shall be established in the license or authorization document, without prejudice to its subsequent amendment at the request of interested parties, subject to the binding conditions for pursue of the activity, under article 21 hereof.
Article 9
Purposes of the television activity
1 - The following shall be deemed as purposes of the television activity, according to the nature, subject-matter and coverage area of the television programme services made available:
a) To contribute towards public information, education and entertainment;
b) To promote accurately and independently the right to inform and to be informed, without impediments or discrimination;
c) To promote citizenship and democratic participation as well as to respect political, social and cultural pluralism;
d) To spread and promote the Portuguese culture and language, Portuguese creators, artists and scientists, as well as values that express national identity.
2 - The purposes referred to in the preceding paragraph shall be taken into consideration by distribution operators in the process of selection and aggregation of television programme services made available to the public.
Article 10
Technical standards
Technical conditions to pursue the television activity and fees for the allocation of broadcast rights or usage of broadcast resources shall be provided for in rules that apply in the scope of electronic communications.
CHAPTER II
Access to the activity
Article 11
Requirements for operators
1 - The television activity shall only be performed by companies that, under this law, pursue such activity as their main objective.
2 - The minimum capital stock required from television operators who need to obtain a licence for performance of the television activity shall be:
a) (Euro) 5 000000, in case of an operator providing general television programme services of national or international coverage;
b) (Euro) 1 000000, in case of an operator providing thematic television programme services of national or international coverage;
c) (Euro) 200 000 or (Euro) 100 000, depending upon whether operators provide television programme services of regional or local coverage, irrespective of their type.
3 - The minimum capital stock required from distribution operators of conditional access television programme services or of free-to-air television programme services subject to a subscription that use the terrestrial spectrum shall be:
a) (Euro) 5 000000, in case of a network that covers the whole national territory, including the Autonomous Regions;
b) (Euro) 1 000000, in case of a network that covers a group of districts in the mainland or a group of islands in the Autonomous Regions, or an island with several municipalities, or a metropolitan area;
c) (Euro) 200 000, in case of a network that covers a municipality or a group of neighbouring municipalities.
4 - From paragraph 1 are exempt operators who merely operate, without any financial profit, educational, cultural and scientific television programme services, which may take the form of an association or foundation.
5 - The capital stock of television operators shall be entirely realised before 30 days have elapsed from the notification of decisions referred to in article 18, at the risk of expiry of the licence or authorization.
Article 12
Restrictions
1 - The television activity shall not be performed or financed by political parties or associations, local authorities or their associations, trade unions, or employer or professional associations, either directly or indirectly, by means of entities in which they hold capital or which are subsidized by them, unless such activity is exclusively performed through the Internet and consists of the organization of programme services of a teaching, institutional or scientific nature.
2 - The television activity shall not be performed by entities held by local authorities or their associations, unless such activity is exclusively performed through the Internet and consists of the organization of programme services of an institutional or scientific nature.
Article 13
Types of access
1 - The television activity shall be conditional upon issue of a licence, by means of public tender, to be launched by decision of the Government, where use of the terrestrial spectrum intended for broadcasting purposes is made, under the National Frequency Allocation Plan, and where it consists of:
a) The organization of unrestricted free-to-air television programme services;
b) The selection and aggregation of conditional access television programme services or of free-to-air television programme services subject to a subscription.
2 - Where dealing with unrestricted free-to-air television programme services, licenses shall be granted on an individual basis, according to the number of television programme services provided by each television operator.
3 - Where dealing with conditional access television programme services or of free-to-air television programme services subject to a subscription, two qualifying documents shall be granted in the scope of the same tender, one of which confers rights of use for involved radio frequencies or groups of frequencies, and the other conferring rights of use for selection and aggregation of television programme services to be provided by a distribution operator.
4 - The television activity shall be conditional upon issue of an authorization, at the request of interested parties, where it consists of the organization of television programme services which:
a) Do not use the terrestrial spectrum intended for broadcast purposes, under the National Frequency Allocation Plan;
b) Are intended to integrate the offer of a distribution operator holding a prior licence for the performance of the television activity, pursuant to point b) of paragraph 1.
5 - Authorizations shall be granted on an individual basis, according to the number of television programme services under the jurisdiction of the Portuguese State provided by each operator.
6 - The preceding paragraphs shall not apply to the public television service, pursuant to chapter V.
7 - Licenses and authorizations for television activity shall not be transferable.
8 - The television activity shall be subject to registration, pursuant to article 19, where it consists of the broadcast of television programme services exclusively through the Internet, which are not retransmitted by other networks.
Article 14
Frequency planning
The radio spectrum planning for the performance of the television activity shall be incumbent on the national communications regulatory authority, having heard the Regulatory Entity for the Media.
Article 15
Public tender for unrestricted free-to-air television programme services
1 - Without prejudice to procedures necessary to the allocation of rights of use for frequencies, incumbent upon the national communications regulator authority, pursuant to Law no. 5/2004, of 10 February, the licensing public tender for the performance of television activity that consists of the organization of unrestricted free-to-air television programme services shall be launched by an administrative rule of the member of the Government responsible for the media area, which shall include the respective subject-matter and regulation.
2 - Express reasons for requirements on the coverage area, types of programme services and the number of hours of the respective broadcasts shall be provided for in the regulation, taking into consideration the public interest such requirements aim to protect.
3 - The regulation shall identify the conditions under which applications are eligible, as well as documents to be attached, to allow the assessment of compliance of applicants and projects with legal and regulatory requirements, namely:
a) Requirements for operators and restrictions to the performance of the activity;
b) Rules on concentration of media ownership;
c) Correspondence between projects and the scope of the tender;
d) Economic and financial feasibility of projects;
e) Coverage obligations and the respective scheduling;
f) Sufficiency and quality of the human and technical resources assigned;
g) Compliance of applicants with tax and social security obligations.
4 - For the purpose of establishing a ranking between different applications submitted to tender, and where general television programme services of a national scope are concerned, the following criteria shall also be taken into account:
a) The contribution of each of these projects towards the improvement of the television offer in the area to be covered, which shall be weighed according to the guarantees of protection of pluralism and independence towards political and economic powers, to the emphasis on information, to the safeguard of rights granted in the Constitution to journalists, to the consistency of general programming guidelines with the respective editorial status and to the correspondence of projects to the social and cultural reality they are aimed at;
b) The contribution of each of these projects towards the diversification of the television offer in the area to be covered, which shall be weighed according to their originality, the investment on innovation and creativity, and the guarantee of rights of access of minorities and under-represented tendencies;
c) The contribution of each of these projects towards the dissemination of creative and independent European and original Portuguese language works;
d) The compliance with legal rules and with commitments entered into in the course of the previous licensed television activity;
e) General guidelines of human resources policy, namely as regards recruitment, training and professional qualification plans.
5 - For the purpose of establishing a ranking between different applications submitted to tender, and where thematic, regional or local scope television programme services are concerned, the criteria laid down in the preceding paragraph shall be taken into account, where applicable.
6 - The regulation shall develop application ranking criteria provided for in paragraphs 4 and 5 and assign a relative weight thereto.
7 - The regulation shall lay down the amount of the security and the respective release scheme according to principles of appropriateness and proportionality relatively to the compliance with obligations aimed to be safeguarded, taking into account the types and territorial scope of television programme services to be licensed.
8 - Specifications, which shall include obligations and conditions of the performance of the activity, shall be available from the date the administrative rule on the tender launching is published until the date and time the corresponding public act is launched, under the terms defined therein.
9 - The Regulatory Entity for the Media must provide a previous opinion on the tender’s subject-matter, respective regulation and specifications, within 20 working days from the reception thereof.
10 - After the deadline referred to in the preceding paragraph has expired, the draft administrative rule shall be submitted to public comment, for a 30-day-period, being published for this purpose in the II Series of the Official Gazette and in the website of the incumbent government department.
Article 16
Public tender for conditional access television programme services or free-to-air television programme services subject to a subscription
1 - The public tender for allocation of rights of use for frequencies and of licenses for the performance of a television activity that consists of the selection and aggregation of conditional access television programme services or free-to-air television programme services subject to a subscription shall be launched by a joint administrative rule of members of the Government responsible for the media and for electronic communications, which shall include the respective subject-matter and regulation.
2 - Express reasons for requirements on the coverage area and types of programme services shall be provided for in the regulation text, taking into consideration the principles of optimal radio spectrum management and of public interest such requirements aim to protect.
3 - The regulation shall identify the conditions under which applications are eligible, as well as documents to be attached, which shall focus specifically on the economic and financial feasibility of projects, coverage obligations and the respective scheduling, correspondence between applicants and projects, on the one hand, and the scope of the tender and legal sector requirements, on the other, applicants who fail to comply with their tax or social security obligations not being eligible.
4 - For the purpose of establishing a ranking between different applications submitted to tender, the Regulatory Entity for the Media and the national communications regulatory authority, according to the respective assignments, shall jointly weight the following criteria:
a) Economic and financial costs of projects;
b) The contribution of projects towards the development of the information society, the improvement of the television offer, the production of European works, and the dissemination of creative production works in original Portuguese language.
5 - The regulation shall develop application ranking criteria and assign a relative weight thereto.
6 - The regulation shall lay down the amount of the security and the respective release scheme according to principles of appropriateness and proportionality relatively to the compliance with obligations aimed to be safeguarded.
7 - Specifications, which shall include obligations and conditions of the performance of the activity, shall be available from the date the administrative rule on the tender launching is published until the date and time the corresponding public act is launched, under the terms defined therein.
8 - The Regulatory Entity for the Media and the national communications regulatory authority must provide a previous opinion on the tender’s subject-matter, respective regulation and specifications, within 20 working days from the reception thereof.
9 - After the deadline referred to in the preceding paragraph has expired, the draft administrative rule shall be submitted to public comment, for a 30-day-period, being published for this purpose in the II Series of the Official Gazette and in the website of the incumbent government department.
Article 17
Examination of applications
1 - Licensing or authorisation applications referred to in point a) of paragraph 1 and in paragraph 4 of article 13 hereof shall be examined by the Regulatory Entity for the Media, which shall obtain for this purpose an opinion on the technical conditions of applications from the national communications regulatory authority.
2 - Licensing applications provided for in point b) of paragraph 1 of article 13 shall be examined by the national communications regulatory authority.
3 - In the scope of applications referred to in the preceding paragraph, the national communications regulatory authority shall make available for inspection by the Regulatory Entity for the Media the compliance with conditions for eligibility of applications for which the latter is competent.
4 - Authorization applications shall attach documents to be defined by administrative rule issued by the member of the Government responsible for the media area.
5 - The regulatory body responsible for examination shall notify applicants, within 15 days from the reception of applications, of any insufficiencies observed therein, which shall be corrected within the following 15 days.
6 - Applications which do not meet the conditions for eligibility provided for in the administrative rule launching the tender shall be rejected by the competent regulatory body, which for the purpose shall provide a reasoned decision.
7 - Applications deemed eligible by the competent regulatory body, after any insufficiencies have been corrected, shall be subject to a decision to grant or reject qualifying documents requested within 90 days, where a licensing application is concerned, or 30 days, where an authorization application is concerned.
Article 18
Granting of licenses or authorizations
1 - It is incumbent upon the Regulatory Entity for the Media to grant, renew, alter or repeal licenses or authorizations for television activity.
2 - The coverage of the whole national territory, including the Autonomous Regions, is a condition for obtaining a license for television activity that consists of the provision of general television programme services of a national scope.
3 - The decisions to grant or to reject licenses or authorizations shall be duly reasoned by reference to the fulfilment of eligibility conditions and each of the ranking criteria referred to in articles 15 and 16, as well as to issues raised in a hearing of interested parties.
4 - The Regulatory Entity for the Media is entitled to reject an authorization application where the following reasons are concerned:
a) Compliance of operators and respective projects with applicable legal obligations;
b) Compliance of applicant with tax and social security obligations;
c) Technical quality of the project submitted.
5 - The qualifying documents for television activity shall list the binding obligations and conditions that fall on programme services, the ranking of television programme services and also the obligations and scheduling of the respective coverage.
6 - Decisions referred to in paragraph 3 shall be notified to interested parties, published in the II Series of the Official Gazette and made available at the website of the Regulatory Entity for the Media, attaching qualifying documents that state the purposes and obligations which licensed or authorized operators must comply with.
7 - It is incumbent upon the national communications regulatory authority to grant, renew, alter or repeal the qualifying document that allocates rights of use for radio frequencies or groups of frequencies intended for the provision of unrestricted free-to-air television programme services, free-to-air television programme services subject to a subscription and conditional access television programme services, pursuant to Law no. 5/2004, of 10 February, without prejudice to the licensing regime established herein.
Article 19
Operator registration
1 - It is incumbent upon the Regulatory Entity for the Media to organize the registration of television and distribution operators as well as of the respective television programme services, in order to make public their ownership, organization, operation and obligations, as well as to protect their designation.
2 - The Regulatory Entity for the Media shall carry out the registration and endorsements that result from its licensing and authorization activity of its own motion.
3 - Television and distribution operators must provide the Regulatory Entity for the Media with all particulars necessary for registration purposes, as well as update them, as defined in a regulatory decree.
4 - At any point in time, the Regulatory Entity for the Media is entitled to carry out audits in order to monitor and control particulars supplied by television and distribution operators.
Article 20
Start of broadcasts
Television operators shall start broadcasting licensed or authorized television programme services within 12 months from the date the corresponding qualifying documents were granted.
Article 21
Compliance with the project approved
1 - The performance of the television activity depends on the compliance on the part of the operator with the conditions and terms of the licensed or authorized project, and any amendment thereto shall be subject to the approval of the Regulatory Entity for the Media, which must assess the issue within 90 days.
2 - The television programme service may only be altered on request three years after the licence has been granted or one year after the authorization has been granted.
3 - The request for alteration shall be justified, taking into account, more specifically, the fundamental legal conditions based on which the licence or authorization were granted, the development of the market and the implications for the potential audience of the programme service under consideration.
Article 22
Term of licences or authorizations
1 - Licences or authorizations for the performance of the television activity shall be issued for a 15-year-term, subsequently renewable for similar periods of time.
2 - The application for renewal of licenses or authorizations shall be submitted to the Regulatory Entity for the Media 240 to 180 days prior to the expiry of the respective term.
3 - The Regulatory Entity for the Media shall decide on the renewal of licenses or authorizations up to 90 days prior to the expiry of the respective term.
4 - The Regulatory Entity for the Media, in the scope of the renewal of licenses or authorizations, shall develop binding obligations on operators, in the light of the evolution in the audiovisual field, so as to adjust them to legal provisions in force at the time.
5 - The renewal of licenses or authorizations shall only be granted in case compliance of the respective operators with binding obligations and conditions is acknowledged.
Article 23
Interim evaluation
1 - By the end of the 5th and 10th year after licenses and authorizations have been granted, the Regulatory Entity for the Media shall prepare and make public, following the hearing of interesting parties, a report on the compliance of operators with binding obligations and conditions, issuing due recommendations thereafter, according to the resulting assessment.
2 - The report of evaluations referred to in the preceding paragraph, as well as the one on the evaluation concerning the last five years of operation of licenses and authorizations, shall be taken into account in the decision on renewal.
Article 24
Extinction and suspension of licenses or authorizations
1 - Licences or authorizations shall cease to exist on expiry of their term or where they are repealed.
2 - Licences and authorizations, as well as programmes, may be suspended in the situations and for the purposes of articles 77, 81 and 85.
3 - The repeal and suspension of licenses and authorizations are incumbent on the entity responsible for the respective granting.
CHAPTER III
Distribution of television programme services
Article 25
Distribution operators
1 - Distribution operators shall give precedence, in organising and presenting the respective television offer, in succession, to television programme services in original Portuguese language of general contents, with general information contents, or with a scientific, educational or cultural nature, taking into account its coverage scope and conditions for access.
2 - Operators of electronic communications networks used in the television activity must provide, following a decision of the national communications regulatory authority, issued according to paragraphs 1 and 2 of article 43 of Law no. 5/2004, of 10 February, the transport of television programme services specified by the Regulatory Entity for the Media under point s) of paragraph 3 of article 24 of Law no. 53/200, of 8 November.
3 - For the purposes of the preceding paragraph, television operators responsible for the organization of the television programme services referred therein must provide the respective signal.
4 - The national communications regulatory authority, pursuant to paragraph 3 of article 43 of Law no. 5/2004, of 10 February, may determine an appropriate compensation for imposed transport obligations.
5 - The Regulatory Entity for the Media may determine, in a proportionate, transparent and non-discriminatory way, an appropriate compensation for imposed signal provision obligations under paragraph 3.
6 - Operators of electronic communications networks dealing with television programme services and distribution operators must provide network and distribution capacity to regional and local television programme services, as well as to the broadcast of educational or cultural activities, given the characteristics of the composition of the offer and technical and market conditions assessed at a given time by the Regulatory Entity for the Media in the scope of authorization procedures, having heard, where it so deems necessary, the Competition Authority or the national communications regulatory authority.
7 - Any alteration to the composition of the offer of distributed television programme services or to the respective access conditions shall take into account the diversification and pluralism obligations and the respect for consumer rights.
8 - Irrespective of the preceding paragraph, the consumer shall be notified 30 days of advance of any alterations to the contracted conditions.
9 - The communication referred in the preceding paragraph shall attach the indication of the power to terminate the contract where alterations concern the composition or price of the offer of distributed television programme services.
10 - The Regulatory Entity for the Media may adopt decisions, pursuant to the respective Bylaws, that ensure compliance with the provisions of this article.
CHAPTER IV
Programming and information
SECTION I
Freedom of programming and information
Article 26
Autonomy of operators
1 - The freedom of expression of opinion through television integrates the fundamental right of citizens to free and pluralistic information, essential to democracy and to the social and economic development of the country.
2 - Save for cases provided for herein, television broadcasting is based on the freedom of programming and neither the Public Administration nor any sovereign body, with the exception of the courts of law, shall prevent, limit or impose the broadcast of any programmes.
Article 27
Restrictions on the freedom of programming
1 - Television programming shall respect the dignity of the human being as well as fundamental rights, freedoms ad guarantees.
2 - Television programme services shall not incite, through broadcasted programming elements, hatred on grounds of a racial, religious or politic nature, or based on colour, ethnic or national origin, sex or sexual orientation.
3 - Programmes likely to cause an obvious and serious harm to the free personality development of children and adolescents are not allowed to be broadcasted, namely those which include pornography or gratuitous violence available within a free-to-air service.
4 - Any other programmes likely to adversely affect the development of children or adolescents shall be identified by the presence of the appropriate visual symbol throughout their duration and shall only be broadcasted between 10:30 p.m. and 06.00 a.m.
5 - The Regulatory Entity for the Media shall encourage television operators to prepare a common television programme rating system, that shall provide for a set of signs identifying different target age groups according to programme contents, in compliance with the rating of the show rating commission, for the purpose of showing cinematographic works or videograms.
6 - Paragraphs 4 and 5 shall not apply to broadcasts in conditional access television programme services.
7 - Paragraphs above apply to all programming elements, including advertising and self-promotion messages, extracts or images, and also teletext services.
8 - Programming elements with the characteristics referred to in paragraphs 3 and 4 may be broadcasted in any news services where they are of journalistic relevance and are presented with respect for the ethical standards of the profession and preceded by a warning concerning their nature.
9 - The Regulatory Entity for the Media shall define and make public the criteria for assessing failure to comply with paragraphs 3 and 4, which shall be objective, appropriate, necessary and proportional to aims pursued.
10 - Television operators may adopt codes of practice that meet requirements set out in this article, having heard, in the scope of the respective assignments, the respective editorial boards.
Article 28
Restrictions on the freedom of retransmission
Provisions of paragraphs 1 to 3 and 7 of the preceding article shall apply to the retransmission of television programme services in the cases and according to procedures provided for in article 86.
Article 29
Programme announcements
1 - Television operators shall inform well in advance and enabling awareness amongst the public, of contents and alignment of television programme services programming for which they are responsible.
2 - Programmes announced, as well as their expected duration and schedule shall not be altered by the television operator earlier than forty-eight hours ahead.
3 - The obligation provided for in the preceding paragraph may be removed where the nature of broadcasted events is of sufficient importance, on account of the need to provide informative coverage of unexpected situations or in cases of “force majeure”.
4 - Programming alterations referred to in paragraphs 2 and 3 shall be communicated to the public in the programme service concerned, regardless of when such alterations take place and of the respective reasons.
5 - Programming announcements planned for television programme services broadcasted in various media services or bodies shall be accompanied by the identifying symbol referred to in paragraph 4 of article 27, this information being provided by the responsible operator.
Article 30
Mandatory broadcasts
1 - Announcements the disclosure of which is requested by the President of the Republic, the President of the Assembly of the Republic and the Prime Minister shall be broadcasted through the television public service, and shall be carried out with due emphasis and most urgently.
2 - In the event a state of siege or state of emergency are declared, the obligation laid down in the preceding paragraph shall also apply to other television operators.
Article 31
Political propaganda
Without prejudice to chapter VI, television operators shall not allow any transmission time for political propaganda.
Article 32
Acquisition of exclusive rights
1 - The acquisition by any television operator of exclusive rights for the transmission of events of a political nature shall be deemed to be null and void.
2 - Where television operators who broadcast in a conditional access basis or without national coverage acquire exclusive rights for the full or partial transmission, via live or deferred coverage, of other events deemed to be of general public interest, the holders of the television rights shall provide access thereto, in non-discriminatory terms and according to common market conditions, to other operators interested in the transmission and who broadcast on a free-to-air and national coverage basis using terrestrial spectrum.
3 - In the absence of an agreement between the holder of television rights and other operators interested in the transmission of the event, the Regulatory Entity for the Media may provide a binding arbitration decision, upon request from any of the parties involved.
4 - The events referred to in the preceding paragraphs and the conditions for their respective transmission shall be included in a list to be published in the II Series of the Official Gazette, by 31 October every year, by the member of the Government responsible for the sector, having heard the Regulatory Entity for the Media, without prejudice to the publication of exceptional endorsements in case subsequent and unpredictable facts of the same nature take place.
5 - The holders of the exclusive rights for the transmission of any events shall provide the respective signal, via live or deferred coverage, to operators who carry out international broadcasts, the respective use being restricted to such broadcasts, under conditions to be defined in a decree-law that shall also establish criteria for compensation; in the absence of an agreement between the interested parties, binding arbitration shall be provided by the Regulatory Entity for the Media.
6 - Television operators subject hereto are not allowed to hold exclusive rights in such a way as to deprive a substantial proportion of the public of another Member State of the European Union of following on free-to-air television events included in lists referred to in paragraph 8, under the conditions established therein.
7 - Penalties for failure to comply with paragraphs 2 or 6 shall not apply where the holder of the exclusive rights provides evidence that obligations provided for therein could not be met.
8 - For the purposes of paragraph 6, the final list of measures taken by Member States, as published in the Official Journal of the European Union, shall be published in the II Series of the Official Gazette at the initiative of the member of the Government responsible for the media sector.
Article 33
Right to informative extracts
1 - Neither those responsible for conducting shows or other public events taking place on national territory, nor holders of exclusive rights to them, may oppose the transmission of brief extracts of such events, of an informative nature, by any television operator, national or otherwise.
2 - For the exercise of the right to information provided for in the previous paragraph, operators may use the signal transmitted by holders of exclusive rights, bearing only the costs that may result from the respective provision, or may alternatively resort to the use of their own technical means, under the legal terms that ensure the access of the media to public places.
3 - Without prejudice to an agreement for a different use, extracts referred to in paragraph 1 shall:
a) Be limited in duration to a strict minimum necessary for perceiving the essential content of events under consideration, taking into account the nature of the events, provided that this does not exceed ninety seconds;
b) Be exclusively broadcasted in regular programmes of an informative nature;
c) Be broadcasted within thirty-six hours after the event has taken place, except where its subsequent inclusion in reports of current events is justified by the purpose of the pursued information;
d) Identify the source of images, where they are broadcasted from a signal transmitted by the holder of exclusive rights.
SECTION II
Operators’ obligations
Article 34
General obligations of television operators
1 - All television operators shall guarantee in their programming, namely by means of self-regulatory practices, the respect for broadcasting ethics, particularly with regard to respect for human dignity, for fundamental rights and other constitutional values, specially the personality development of children and adolescents.
2 - The following shall be deemed as general obligations for all television operators that operate general television programme services of a national coverage:
a) To ensure a varied and plural programming, including during time periods of a major audience;
b) To guarantee information that observes pluralism, accurateness and independence;
c) To guarantee programming and information that is independent from political and economic powers;
d) To issue announcements referred to in paragraph 1 of article 30, in case a state of siege or of emergency is declared;
e) To ensure the right to broadcast time during electoral periods, as provided for in the Constitution and in the law;
f) To guarantee the right to reply and to rectification as provided for in the Constitution and in the law;
g) To broadcast creative European works, namely in Portuguese language, and to participate in the development of their production, as provided for in the law.
3 - The Regulatory Entity for the Media shall define, having heard television operators, the set of obligations that shall enable people with special needs to follow broadcasts, namely by means of subtitling, sign language, audio-description and other techniques deemed appropriate, based on a multiannual plan providing for their gradual implementation, taking into account technical and market conditions assessed by that regulatory entity at any given time.
4 - In addition to obligations provided for in points a) to c) and f) of the preceding paragraph, the following shall be deemed as obligations of general television programme services of a regional or local scope:
a) To extend television programming to regional or local contents;
b) To broadcast information with a specific interest for the audience’s geographic scope;
c) To promote typical values of regional or local cultures.
5 - Points a), b) and g), and regardless of their nature, points c) and f) of paragraph 1 shall be deemed as obligations of thematic programme services.
Article 35
Director
1 - Every television programme service shall have a director responsible for providing the orientation and supervision of broadcast contents.
2 - Every television programme service which includes informative programming shall have a head of information.
Article 36
Editorial statute
1 - Every television programme service shall adopt an editorial statute that shall define its orientation and objectives clearly and in detail, including the commitment to respect the rights of viewers, as well as the deontological principles of journalists and professional ethics.
2 - The editorial statute shall be drawn up by the head referred to in the preceding article, having heard the editorial board, subject to the approval of the entity owner, and shall be submitted to the Regulatory Entity for the Media no more than 60 days after the day on which the broadcasts start.
3 - The procedure laid down in the preceding paragraph shall apply to any amendments to the editorial statute.
4 - The editorial statute of television programme services shall be made publicly available by any appropriate means.
Article 37
News services
General television programme services shall broadcast news services on a regular basis, prepared by journalists.
Article 38
Editorial board and journalists’ right to participation
Television programme services with more than five journalists shall be provided with an editorial board, elected according to the procedure and with the areas of competence defined by law.
Article 39
Number of broadcasting hours
1 - Licensed television programme services shall broadcast programmes for at least six hours a day.
2 - Advertising and teleshopping programmes, as well as broadcasts of fixed or merely repetitive images, are excluded from the limit established in the preceding paragraph, without prejudice to paragraph 4 of article 8.
SECTION III
Advertising
Article 40
Transmission time allotted to advertising
1 - The amount of spot advertising and teleshopping between two-hour periods shall not exceed 10% or 20%, according to whether conditional access television programme services or free-to-air television programme services, unrestricted or subject to a subscription, are concerned.
2 - From the limits established in this article shall be excluded announcements made by television operators in connection with their own programmes and ancillary products directly derived from those programmes, and also public service or public interest announcements and humanitarian appeals broadcast free of charge, as well as the identification of sponsorships.
Article 41
Windows devoted to teleshopping
1 - Television programme services of a national scope and on a free-to-air basis subject to a subscription may broadcast up to a maximum of eight windows per day, provided that their overall duration does not exceed three hours per day, without prejudice to the preceding article.
2- Windows devoted to teleshopping shall be of a minimum uninterrupted duration of 15 minutes.
3 - Television programme services exclusively devoted to self-promotion shall not broadcast teleshopping windows.
SECTION IV
Identification of programmes and recording of programmes
Article 42
Identification of programmes
Programmes shall be identified and comprise all relevant information on the respective artistic and technical credits.
Article 43
Recording of programmes
1 - Irrespective of article 92, programmes shall be recorded and stored for at least 90 days, if a longer period is not determined by law or court decision.
2 - The Regulatory Entity for the Media may request at any moment from operators recordings referred to in the preceding paragraph, which must be submitted within forty-eight hours, in duly substantiated cases of emergency.
SECTION V
Broadcast of audiovisual works
Article 44
Protection of the Portuguese language
1 - Broadcasts shall be spoken or subtitled in Portuguese, without prejudice to the possible use of other languages in programmes that fulfil occasional informative needs, are intended for the teaching of foreign languages, or are aimed specially at immigrant communities.
2 - Television programme services with national coverage, with the exception of those whose nature and thematic content would not permit such an approach, shall devote at least 50% of their broadcasts, excluding the time reserved for advertising, teleshopping and teletext services, to the broadcast of original Portuguese language programmes.
3 - Without prejudice to the preceding paragraph, television services referred therein shall reserve at least 20% of their transmission time to creative programmes originally produced in Portuguese.
4 - Rates established in paragraphs 2 and 3 may be filled, up to 25%, by programmes from other Portuguese-speaking countries.
5 - Television operators shall guarantee that compliance with rates referred to in paragraphs 2 and 3 does not take place during off-peak viewing periods.
Article 45
European production
Television operators who operate television programme services with national coverage shall reserve for European works a majority proportion of their transmission time, excluding the time appointed to news services, sports events, games, advertising, teleshopping and teletext services.
Article 46
Independent production
Television operators who operate television programme services with national coverage shall reserve at least 10% of their transmission time, excluding the time appointed to news services, sports events, games, advertising, teleshopping and teletext services, for European works created by producers who are independent of broadcasters, which must be transmitted within five years of their production.
Article 47
Application criteria
1 - Compliance with rates referred to in articles 44 to 46 shall be assessed every year, and shall take into account the specific nature of thematic television programme services and operator’s responsibilities as regards information, education, culture and entertainment.
2 - The report on the assessment referred to in the preceding paragraph, with the respective conclusions, shall be made publicly available at the website of the Regulatory Entity for the Media.
Article 48
Support for production
The State shall ensure incentive policies for the original production in Portuguese of audiovisual fiction, documentaries and animation, with a view to creating conditions for compliance with the provisions of articles 44 to 46, by adopting the appropriate legal, financial, fiscal or credit mechanisms.
Article 49
Duty to inform
Television operators shall provide the Regulatory Entity for the Media every three months, according to the model defined by the latter entity, with all the items necessary to monitor compliance with the obligations laid down in articles 44 to 46.
CHAPTER V
Public television service
Article 50
Principles
1 - The structure and operation of the public television service operator shall safeguard its independence from the Government, Public Administration and other public authorities, as well as ensure that the various strands of opinion can be expressed and compared.
2 - The public television service shall uphold the principles of universality and national cohesion, of diversification, of programming excellence and indivisibility, of pluralism and accuracy, of information independence, as well as the principle of innovation.
Article 51
Specific obligations upon the concessionaire of the public television service
1 - The concessionaire of the public television service shall present, according to the principles laid down in the preceding article, programmes that promote the cultural and civic education of viewers, allowing access of all to information, culture, education and quality entertainment.
2 - In particular, the concessionaire is responsible for:
a) Providing varied and comprehensive programmes that promote cultural diversity and take into account the interests of minority groups;
b) Promoting public access to Portuguese cultural events and guaranteeing an appropriate informative coverage thereof;
c) Providing independent, accurate, pluralist and context related information, that ensures news coverage of the main national and international events;
d) Ensuring the production and transmission of educational and entertainment programmes intended for young people and children, in order to contribute towards their education;
e) Ensuring the broadcast of cultural, educational and informative programmes for specific audiences, including those of the different immigrant communities in Portugal;
f) Taking part in educational activities for the media, namely ensuring the broadcast of programmes targeted at this objective;
g) Promoting the broadcast of programmes in Portuguese, of varied types, and reserving to European production a considerable time of its transmission time, dedicating thereto rates that are higher than those required herein from all television operators, given the purpose of each programme service;
h) Supporting national production of cinematographic and audiovisual works, in line with international commitments binding on the Portuguese State, and co-production with other countries, especially European and Portuguese-speaking countries;
i) Broadcasting programmes intended especially for Portuguese people resident outside Portugal and for nationals of other Portuguese-speaking countries also resident outside Portugal;
j) Ensuring that people with special needs are able to follow transmissions, namely through subtitling, sign language, audio-description and other techniques deemed appropriate, and that programmes specifically aimed at this audience are transmitted, according to the schedule defined in the multi-annual plan referred to in paragraph 3 of article 34, which shall take into account the specific responsibilities of the public service, provided for in the respective concession contract;
l) Guaranteeing the right to broadcast time and to political reply, under the Constitution and the law;
m) Broadcasting any announcements requested by the President of the Republic, the President of the Assembly of the Republic or the Prime Minister;
n) Allowing viewing time for the Public Administration, in order to disseminate information of general interest, particularly in matters of public health and safety.
Article 52
Concession of the television public service
1 - The concession of the public television service shall be granted for a 16-year period, under the terms of the concession contract to be concluded between the State and the concessionaire.
2 - The concession of the public television service shall be carried out by means of unrestricted free-to-air television programme services, or, on grounds of a technological or financial nature, of free-to-air television programme services subject to a subscription.
3 - The concession of the public television service must include:
a) A general programme service distributed simultaneously throughout the national territory, including the Autonomous Regions, which aims to meet the educational, informative, cultural and entertainment needs of the general public;
b) A second general programme service distributed simultaneously throughout the national territory, including the Autonomous Regions, open to the participation of the civil society, which aims to meet the informative and entertainment needs, and specially the education and cultural needs of various public sections, including the minorities;
c) Two television programme services intended respectively to the Autonomous Region of the Azores and the Autonomous Region of Madeira;
d) One or more programme services aimed at Portuguese-speaking viewers resident abroad or in countries where Portuguese is an official language, promoting the affirmation, enhancement and defence of Portugal’s image in the world.
4 - The television programme services referred in points a), b) and c) of the preceding paragraph shall be broadcasted on an unrestricted free-to-air basis.
5 - To comply with legal and contractual obligations, the concession of the public television service may also integrate television programme services that aim in particular to:
a) Provide specific information, having particular regard to matters with interest for specific regions or communities, whether or not in articulation with other television programme services, namely in the scope of joint management of rights;
b) Disclose the documentary material from audiovisual archives of the public service concessionaire;
c) Meet the educational and training needs of young people and children;
d) Promote the access to different areas of knowledge.
6 - The concession contract mentioned in paragraph 1 shall establish, according to provisions in this chapter, the rights and obligations of each party, and shall define the targets to be reached and quality and quantity criteria to ensure that this is achieved, as well as the respective means of evaluation.
7 - The contents of the concession contract and of acts or contracts referred to in the preceding paragraph shall be subject to an opinion from the Regulatory Entity for the Media.
8 - The concession contracts should be reviewed every four years, without prejudice to any amendments deemed necessary in the meantime.
9 - The review process referred to in the preceding paragraph shall take into consideration the evaluation of the compliance with the public service and weight the need for a public consultation on the targets and reference criteria for the following four-year period.
Article 53
First general programme service of a national scope
The general programme service of a national scope aimed at the general public shall focus specially, having regard to each local area and the various groups that make up the Portuguese society, on:
a) Information, namely by broadcasting debates, interviews, reports and documentaries;
b) Quality entertainment in original Portuguese language;
c) Programmes of a cultural nature;
d) Making viewers aware of their rights and duties as citizens.
Article 54
Second general programme service of a national scope
1 - The second general programme service of a national scope shall include programmes of a strong cultural and educational component, enhancing education, science, investigation, arts, innovation, social work, disclosure of humanitarian causes, amateur and school sport, religious faiths, independent production of creative works, Portuguese cinema, environment, consumer protection and audiovisual experimentalism.
2 - The second general programme service of a national scope shall ensure coherent and quality programmes, which shall be different from those of other public service television programme services, with the participation of public or private entities with a relevant role in the areas mentioned in the preceding paragraph.
3 - An advisory body shall be established under the auspices of the second programme service to represent partners of the Public Administration and the civil society related thereto.
Article 55
Television programme services of an international scope
1 - Television programme services referred to in point d) of paragraph 3 of article 52 shall pursue their own objectives taking into account national interests as regards the connection to Portuguese communities throughout the world or the cooperation with Portuguese-speaking countries.
2 - For the purpose of the preceding paragraph, the concessionaire of the public television service may sign collaboration agreements with private television operators that transmit general television programme services, as well as with public bodies and services with relevant action in those fields.
3 - An advisory body shall be established under the auspices of the international television programme services to represent partners of the Public Administration and the civil society related thereto.
Article 56
Television programme services of a regional scope
1 - Television programme services aimed especially at the Autonomous Regions of the Azores and Madeira shall take due regard of the respective social and cultural realities and enhance regional production.
2 - Television programme services of a regional scope shall allow viewing time for the Public Administration, including the autonomous regional administration, in order to disseminate information of general interest, particularly in matters of public health and safety.
3 - The concessionaire of the television public service and the Regional Governments of the Azores and Madeira may establish specific agreements that provide for the financing of specific complementary obligations of the television public service, defined as such by the respective Legislative Assemblies.
Article 57
Performance financing and monitoring
1 - The State shall ensure the financing of the public television service and shall safeguard the appropriate implementation thereof, under the law and the concession contract.
2 - Public financing shall respect the principles of proportionality and transparency.
3 - The contracts of concession shall establish a system of control to monitor compliance with assignments of the public service, and transparency and proportionality of associated financial flows, guaranteeing that they are limited to the level necessary for their pursue, and providing for the appropriate mechanisms to ensure reimbursement, in case of financial over-compensation.
4 - The concession contract shall also prevent the concessionaire from adopting practises not justified by market rules that lead to the increase of costs or decrease of revenues.
5 - In order to ensure an adequate and efficient management of resources, in accordance with the likely evolution of economical and social environment, expenses resulting from the financing of the public radio and television service will be specified on a multi-annual basis over four-year periods.
6 - The specification referred to in the preceding paragraph shall identify, in addition to total costs for the four-year period, the annual breakdown of these expenses.
7 - The annual external audit promoted by the Regulatory Entity for the Media, in the scope of its assignments, must include the assessment of compliance with paragraphs 2 to 4 hereof.
CHAPTER VI
Rights to broadcast time, to reply and to political reply
SECTION I
General provision
Article 58
Broadcast time counting
Television operators shall ensure the counting of broadcast time, for the purpose of this chapter, making interested parties aware of the respective results.
SECTION II
Right to broadcast time
Article 59
Access to the right to broadcast time
1 - Political parties, the Government, trade unions, professional organisations and those representing economic activities and environmental and consumer protection associations shall be guaranteed the right to broadcast time on the public television service.
2 - Entities referred to in the previous paragraph shall be entitled to the following annual free amount of broadcast time:
a) Ten minutes per party represented in the Assembly of the Republic, plus thirty seconds for each elected member;
b) Five minutes per party not represented in the Assembly of the Republic that participated in the most recent national elections, plus fifteen seconds for each 15,000 votes obtained in the elections;
c) Sixty minutes for the Government and sixty minutes for parties represented in the Assembly of the Republic which are not part of the Government, to be divided according to their representation;
d) Ninety minutes for trade union organisations, ninety minutes for professional organisations and those representing economic activities, and fifty minutes for environmental, consumer protection and human rights associations, to be divided according to their representation;
e) Fifteen minutes for other bodies entitled to broadcast time by law.
3 - Broadcast time shall mean an individual programme slot for which the holder of the right is responsible, a fact that should be explicitly mentioned at the beginning and at the end of each programme.
4 - Each right holder may not use the entitlement to broadcast time more than once every 15 days, nor in programmes that last more than ten minutes or less than three minutes, unless their overall broadcast time is lower.
5 - People in charge for programmes shall organise, in collaboration with the holders of the right to broadcast time and pursuant to this law, general plans for its respective use.
6 - In the absence of an agreement on the plans referred to in the preceding paragraph, the Regulatory Entity for the Media shall arbitrate.
Article 60
Limitation of the right to broadcast time
1 - The right to broadcast time shall not be exercised on Saturdays, Sundays and national public holidays, and shall also be suspended a month before the date established for the beginning of an electoral or referendum campaign, under the respective legislation.
2 - The right to broadcast time is non-transferable.
Article 61
Broadcast and reservation of the right to broadcast time
1 - Broadcast times shall be transmitted in the television programme service with national coverage at peak viewing hours immediately before or after the main national news service broadcast between 7.00 p.m. and 10.00 p.m.
2 - Holders of the right to broadcast time may request the reservation of the time to which they are entitled up to 15 days prior to transmission, and the respective recording should be carried out or the pre-recorded materials should be submitted up to forty hours before the broadcast of the programme.
3 - Programmes which are ready for broadcast shall be handed in no later than twenty four hours prior to transmission.
4 - Holders of the right to broadcast time shall be provided, on absolutely equal terms, with the indispensable technical means required for the production of their respective programmes.
Article 62
Forfeit of the right to broadcast time
Failure to comply with the times provided for in the preceding article shall result in the forfeit of the right, unless it is due to forces beyond the control of the holder, in which case the unused time may be added to the next program taking place after the removal of the obstacle.
Article 63
Right to broadcast time during election-time
During election-time, the use of the right to broadcast time shall be governed by electoral law, covering all general television programme services provided on a free-to-air basis.
SECTION III
Right to political reply
Article 64
Right to political reply of opposition parties
1 - Parties represented in the Assembly of the Republic that do not form part of the Government are entitled to reply to political statements made by the Government that are directly aimed at them, in the same program service.
2 - The duration and emphasis granted to exercise the right mentioned in the preceding paragraph shall be the same as for the original statements that gave rise to the reply.
3 - When more than one party has requested to exercise the right, through the respective representative, the time shall be divided in equal parts among the various right holders, each participant being entitled to at least one minute.
4 -The procedures covered in the present law for the exercise of the right to reply shall apply to the right to political reply, duly adapted.
5 - For the purposes of this article, only declarations on general or sector policies made by the Government in its name and identified as such shall be considered, and thus statements made by members of the Government on matters relating to the management of their respective departments do not fall within this scope.
SECTION IV
Rights to reply and to rectification
Article 65
Premises of the rights to reply and to rectification
1 - All natural persons or companies, organisations, public services or bodies that have been referred to, even indirectly, in television programme services, in such a way as to affect their reputation or good name, are entitled to reply therein.
2 - Entities mentioned in the preceding paragraph are entitled to make rectifications in television programme services where untrue or wrong references concerning them have been made therein.
3 - The right to reply and to rectification shall be prejudiced where the television operator has corrected or clarified, with the explicit agreement of the interested party, the text or image under consideration, or has provided another means of outlining the relevant facts or views which would justify the reply or rectification.
4 - The right to reply and to rectification shall be without prejudice to criminal proceedings for the transmission itself, as well as to the right to compensation for damages suffered.
Article 66
Right to view the broadcast
1 - The holder of the right to reply and to rectification, or his legitimate representative pursuant to paragraph 1 of the following article, may request, in order to exercise his right, to view the material from the broadcast under consideration, which must be provided thereto within a twenty-four-hour period.
2 - The request for viewing suspends the deadline for the exercise of the right to reply or to rectification, which shall restart twenty-four hours after the broadcaster has provided the recording.
3 - The right to view the broadcast shall also involve obtaining a recording of the broadcast, upon payment of the cost of the device used.
Article 67
Exercise of the rights to reply and to rectification
1 - The rights to reply and to rectification shall be exercised by the holder thereof, his legal representative or heirs within 20 days following the broadcast.
2 - The deadline in the preceding paragraph shall be suspended where, for reasons of force majeure, the people referred to therein are prevented from exercising the right under consideration.
3 - The text of the reply or rectification must be submitted to the television operator, bearing the signature and identification of the writer, against proof of receipt, expressly invoking the right to reply and to rectification or the relevant legal provisions.
4 - The content of the reply or rectification shall be limited to the direct and useful relation to the references that provoked them, and shall not exceed the number of words of the text that gave rise to them.
5 - The reply or rectification shall not include any words that are disproportionately uncivil or that involve criminal or civil liability, for which only the writer of the reply or rectification shall be accountable.
Article 68
Decision on the transmission of the reply or rectification
1 - Where the reply or rectification are made too late, are provided by persons who are not entitled to it, are clearly unjustified or fail to comply with the provisions of paragraphs 4 and 5 of the preceding article, the television operator may refuse to broadcast them, and shall inform the interested party of the refusal and grounds therefor, in writing, within twenty-four hours from reception of the reply or rectification.
2 - Where the reply or rectification fail to comply with the provisions of paragraphs 4 and 5 of the preceding article, the television operator shall request from the interested party, within the deadline laid down in the preceding paragraph, to remove the parts or words under consideration within forty-eight hours, failing which the television operator shall be entitled to refuse to broadcast the whole text.
3 - Where the right to reply or to rectification has not been fulfilled or has been unjustifiably refused, the interested party may bring the matter to the judicial court in the area of his residence, within 10 days from refusal or expiry of the legal deadline for the fulfilment of the right, or to the Regulatory Entity for the Media, pursuant to and within the time limits of rules that apply specifically.
4 - Following the request for legal notification of the operator who has not fulfilled the right to reply or to rectification, that operator shall be immediately notified by post in order to challenge the claim within a period of two working days, following which a decision shall be issued within the same period, which may be subject to appeal with a simple devolutive effect.
5 - Only documentary evidence shall be allowed, and all documents shall be attached to the initial claim and challenge.
6 - Where the claim is upheld, the television operator shall broadcast the reply or rectification within the deadline laid down in paragraph 1 of the following article, being also referred that the broadcast is being carried out following a legal decision or a decision of the Regulatory Entity for the Media.
Article 69
Broadcast of the reply or rectification
1 - The broadcast of the reply or rectification shall take place within twenty-four hours from the time the respective text is delivered to the television operator, save for paragraphs 1 and 2 of the preceding article.
2 - The reply or rectification shall be broadcast for free during the same programme or, where this is not possible, during an equivalent broadcast time.
3 - The reply or rectification shall be broadcast as many times as the programmes containing the reference that gave rise to them.
4 - The reply or rectification shall read by a speaker of the programme service in a format that ensures it is easily understood and may include other audio-visual components where the reference that gave rise to them uses similar techniques.
5 - The broadcast of the reply or rectification may not be preceded nor followed by any comments whatsoever, except for those necessary to indicate any inaccuracy or error, which may give rise to a new reply or rectification, under paragraphs 1 and 2 of article 65.
CHAPTER VII
Liability
SECTION I
Civil liability
Article 70
Civil liability
1 - General principles shall be followed to determine the conditions under which civil liability resulting from facts committed through television may be incurred.
2 - Television operators shall be jointly liable with those responsible for the broadcast of programmes previously recorded, except for those transmitted under the right of broadcast time.
SECTION II
Penalties
Article 71
Crimes committed through television
1 - Acts or behaviours perpetrated through television adversely affecting legally-protected interests shall be liable under general provisions, with the adaptations laid down in the following paragraphs.
2 - Where the law does not provide for an aggravation on account of the means of perpetration, crimes committed through television not provided for in this law shall be liable to penalties established in the respective criminal provisions, increased by a third in their maximum and minimum limits.
3 - The director referred to in article 35 shall be liable only where he does not oppose the perpetration of crimes referred to in paragraph 1, by means of an appropriate action to avoid them, in which case penalties stipulated in corresponding legal categories are applicable with the respective limits reduced by a third.
4 - Where persons duly identified provide statements properly reproduced or opinions, they shall be liable therefor, except where the respective contents represent an incitement to hatred on grounds of a racial nature, religion, politics, skin colour, ethnic or national origin, sex or sexual orientation, or to the perpetration of a crime, and the respective transmission may not be justified on journalistic criteria.
5 - Where unauthorized broadcasts are concerned, the person responsible for determining the respective broadcast shall be held liable.
6 - The technicians at the service of television operators shall not be liable for the broadcasts to which they have provided their professional services, where they are not deemed accountable for the awareness of the criminal nature of their act.
Article 72
Illegal television activity
1 - Whoever pursues television activity failing to hold a legal authorisation to do so shall be liable to a term of imprisonment of up to 3 years or a fine up to 320 days.
2 - All assets used in unauthorized television activity shall be confiscated, without prejudice to the rights of third parties who acted in good faith, under article 110 of the Penal Code.
3 - Paragraph 1 shall apply specifically in the following situations:
a) Pursue of the activity by an entity other than the one holding a license or authorization;
b) Failure to comply with the decision to revoke a licence or to prohibit the retransmission of a programme service.
Article 73
Qualified disobedience
1 - Those responsible for programming, or whoever replaces them, shall be liable for the crime of qualified disobedience where, in order to prevent the intended purposes:
a) They fail to accept a court decision ordering the broadcast of a reply or rectification pursuant to paragraph 6 of article 68;
b) They refuse to broadcast legal decisions, pursuant to article 91;
c) They fail to comply with the determinations of the Regulatory Entity for the Media regarding the exercise of the right to broadcast time, to political reply, to reply or to rectification;
d) They fail to comply with an interim or final decision to suspend a transmission or retransmission.
2 - Entities who fail to accept the decision of the Regulatory Entity for the Media to suspend a retransmission, pursuant to article 86, shall also be liable for the crime of qualified disobedience.
Article 74
Undermining the freedom of programming and information
1 - Whoever prevents or disturbs the transmission of programme services or seizes or damages the necessary material for the pursue of television activity, save as provided for by the legislation, with the purpose of undermining the freedom of programming or information, shall be liable to a term of imprisonment of up to 2 years or a fine up to 240 days, where a heavier penalty has not been provided for under penal law.
2 - The application of the penalty provided for in the preceding paragraph shall be without prejudice to civil liability for damages caused to the broadcaster.
3 - Where the perpetrator is an agent or servant of the State or of a public legal person and commits the acts described in paragraph 1, in the pursue of his or her duties, he or she shall be liable to a term of imprisonment of up to 3 years or a fine up to 320 days, where a heavier penalty has not been provided for under penal law.
Article 75
Minor breaches
1 - The following breaches are liable to a fine from (Euro) 7 500 to (Euro) 37 500:
a) Failure to comply with paragraph 3 of article 19, the first part of paragraph 4 of paragraph 27, articles 29 and 42, paragraph 5 of article 44 and articles 45, 46 and 58;
b) Failure to comply the first part of paragraph 1 of article 60;
c) Failure to include the reference referred to in the second part of paragraph 6 of article 68.
2 - Negligence shall be punishable, in which case the maximum and minimum limits of applicable penalties shall be reduced by half.
Article 76
Serious breaches
1 - The following breaches are liable to a fine from (Euro) 20 000 to (Euro) 150 000:
a) Failure to comply with paragraphs 1, 6, 8 and 9 of article 25, the second part of paragraph 4 and paragraph 8 of article 27, paragraph 1 of article 30, paragraph 5 of article 32, paragraph 3 of article 33, articles 35, 36, 37, 40, 41 and 43, paragraphs 1 to 3 of article 44, article 49, paragraph 4 of article 59, paragraphs 1 and 4 of article 61, paragraphs 2 and 3 of article 64, article 69 and paragraph 1 of article 92;
b) Failure to include the information referred to in paragraph 1 of article 68;
c) Infringement of article 20, the second part of paragraph 1 of article 60 and deadlines established in paragraph 1 of article 66 and paragraph 6 of article 68.
2 - Negligence shall be punishable, in which case the maximum and minimum limits of applicable penalties shall be reduced by half.
Article 77
Very serious breaches
1 - The following breaches are liable to a fine from (Euro) 75 000 to (Euro) 375 000 and to a suspension, for a period from 1 to 10 days, of the license or authorization for the programme service or transmission of the programme in which they were committed, according to the seriousness of the infringement:
a) Failure to comply with paragraph 2 of article 7, article 12, paragraph 1 of article 21, paragraphs 2 and 3 of article 25, paragraphs 2 and 3 of article 27, article 31, paragraphs 2 and 6 of article 32, paragraph 1 of article 33, paragraph 1 of article 39 and paragraph 2 of article 60;
b) Violation by any operator of binding coverage obligations and the respective scheduling;
c) Infringement by any operator of paragraph 2 of article 30 and the right provided for in paragraph 1 of article 66;
d) The operation of television programme services by entities other than holders of licences or authorizations;
e) Non-fulfilment of the right to broadcast time held by entities entitled thereto under paragraph 1 of article 59.
2 - The retransmission of television programme services or programmes in breach of paragraphs 2 and 3 of article 27 shall be liable to the penalty referred in the preceding paragraph where:
a) Rights over contents under consideration are acquired in the knowledge of their nature; or
b) The breach is obvious and clear and the distribution operator does not prevent the access to the respective contents, where the retransmission of contents from countries outside the European Union is concerned.
3 - Negligence shall be punishable, in which case the maximum and minimum limits of applicable penalties shall be reduced by half.
Article 78
Liability
1 - The television operator in whose programme service the infringement was committed shall be liable for breaches provided for in the preceding articles, save for the violation of paragraph 2 of article 60, for which the holder of the right to broadcast time shall be liable.
2 - Distribution operators shall be liable for breaches for which they are accountable pursuant to article 25 and paragraph 2 of article 77.
Article 79
Infringement committed during broadcast time
The violation of paragraphs 2 and 3 of article 27 and paragraph 2 of article 60, laid down in point a) of paragraph 1 of article 77, where committed in the course of the performance of the entitlement to broadcast time, shall be liable to the additional sanction of suspension of the performance of such right for a period from 3 to 12 months, with a minimum of 6 to 12 months in the event of a repeat offence, without prejudice to other penalties provided for in the law.
Article 80
Special mitigation of and exemption from the suspension and fine
1 - Where circumstances are such as to allow the special penalty mitigation, under general law:
a) In the case of a minor or serious breach, the provision of paragraph 3 of article 18 of Decree-Law No. 433/82, of 27 October, shall apply;
b) In the case of a very serious breach, the limits of the penalty shall be reduced by a third, and the suspension of the license or authorization for the programme service or transmission of the programme may not be ordered.
2 - In the case of a minor breach, the offender may be exempted from the penalty where circumstances are such as to allow a penalty exemption, under penal law.
3 - The operator may be exempted from the penalty in the case of violation of the time limits for advertising established in article 40 where failure to comply with this limit occurs occasionally and on exceptional grounds, duly justified, namely the unexpected delay or extension of a programme, and where there is evidence that, in the course of that time period, and the preceding and subsequent ones, the accumulated advertising limit provided for in that provision has been respected.
Article 81
Special aggravation
Where the operator commits a breach after having been punished for another offence committed less than one year before, the minimum and maximum limits of the fine and the suspension of transmission shall be doubled.
Article 82
Revocation of licence and authorization
1 - Failure to comply with paragraph 2 of article 7, paragraph 1 of article 21, paragraphs 2 and 3 of article 25, paragraphs 2 and 3 of article 27, article 31, paragraphs 2 and 6 of article 32, paragraph 1 of article 33, paragraph 1 of article 39, paragraph 1 of article 59, paragraph 2 of article 60 and paragraph 1 of article 66, and infringement of binding coverage obligations and the respective scheduling in television programme services where two previous breaches of the same degree of seriousness have been committed may give rise to the revocation of the respective license or authorization.
2 - For the purposes of the preceding paragraph, breaches shall not be taken into consideration where more than two years have elapsed between the conviction and the following infringement.
3 - Failure to comply with article 12 and paragraph 2 of article 30 may give rise, according to the seriousness of the infringement, to the revocation of the license or authorization of the television programme services where it was committed.
4 - Where article 20 is infringed, the Regulatory Entity for the Media may set a new deadline for the start of programme broadcast, upon expiry of which, where the breach has persisted, the license or authorization shall be revoked.
5 - The repeated infringement of points a) to c) of paragraph 1 of article 73 may give rise to the revocation of the license or authorization of television programme services where it was committed.
6 - The violation of point d) of paragraph 1 of article 73 may give rise to the revocation of the license or authorization of television programme services where it was committed.
Article 83
Suspension of operation
1 - The suspension of the license or authorization for programme services, or for the transmission of a programme, may be suspended for a period from three months to a year, where conditions on which depend, according to general penal law, the suspension of the operation of penalties are met, and the operator has not been convicted for a breach within the previous year.
2 - The suspension of operation may be subject to the requirement of a good conduct, to be set from (Euro) 20 000 and (Euro) 150 000, depending on the duration of the suspension.
3 - The suspension of operation shall be revoked at all times where, in the course of the respective period, the offender commits a very serious breach.
4 - The revocation will entail the execution of the suspension, the operation of which was suspended, and the termination of the guarantee.
Article 84
Abbreviated proceedings
1 - In the case of infringement of paragraphs 1 and 2 of article 40 and in any other situation where the Regulatory Entity for the Media holds a recording or other automated registration of facts that constitute the infringement, as soon as the news of the infringement has been received, the operator shall be notified of:
a) The facts that constitute the infringement;
b) The legislation infringed;
c) The applicable penalties;
d) The time-limit granted to arrange his defence.
2 - The defendant may, within 20 days from the notification, arrange his defence, in writing, providing any means of evidence deemed necessary.
Article 85
Interim suspension of transmission
1 - Where there are strong indications of a very serious breach, under this law, and where, given the nature of the transmission and other circumstances, there is a danger that the illegal activity persists or is repeated, the Regulatory Entity for the Media may order the immediate suspension of the programme transmission or of the programme service in which the breach was committed.
2 - The decision may be subject to review by a judicial court, which shall be immediately sent for legal decision, and shall be judged within a maximum of 15 days of receipt of the relevant documents in the respective court.
Article 86
Limits to retransmission
1 - The Regulatory Entity for the Media is entitled to suspend the retransmission of free-to-air television programme services, both unrestricted or subject to a subscription, or of the respective programmes, where they:
a) Cause an obvious and serious harm to the free personality development of children and adolescents, namely programmes that include pornography or gratuitous violence; or
b) Incite hatred, racism or xenophobia; and the broadcasting television operator has committed such breach at the least twice in the course of the preceding 12 months.
2 - Where television programme services or programmes from other Member States of the European Union are concerned, the measure referred to in the preceding paragraph shall be preceded of:
a) A notification of the Regulatory Entity for the Media to the transmitting television operator and to the European Commission, identifying the alleged breaches and measures to be adopted, in case such breaches are repeated;
b) In case of persistence of the breach, after 15 days have elapsed from the notification provided for in the preceding point and following conciliatory consultations between the Member State of transmission and the European Commission, a notification of the Regulatory Entity for the Media to the European Commission, to the Member State of transmission and also to the distribution operator of the suspension of the retransmission of programmes that fail to comply with the preceding paragraph.
SECTION III
Special provisions on proceedings
Article 87
Form of proceedings
Proceedings for criminal offences committed through television shall be governed by the provisions of the Code of Criminal Procedure and complementary legislation, with the specificities resulting from this law.
Article 88
Territorial jurisdiction
1 - The judicial court of the area where the operator has its head office or permanent representation shall have jurisdiction over crimes provided for herein.
2 - From the preceding paragraph shall be exempted crimes against good name and reputation, the protection of private life or other personal values, for which the judicial court of the area of residence of the injured party shall have jurisdiction.
3 - In the case of television broadcasts by an entity not entitled to do so under the law, and where the element defining jurisdiction under paragraph 1 is unknown, the Judicial Court of Lisbon shall have jurisdiction.
Article 89
Interim suspension in criminal proceedings
Article 85 shall apply, duly adapted, in proceedings for crimes provided for in this law, being incumbent upon the Public Prosecutor's Office to request an interim suspension during the investigation stage.
Article 90
Regime of evidence
1 - In order to prove requirements for the exercise of the rights to reply or to rectification, and without prejudice to other means of evidence provided for by law, the interested party may request, pursuant to article 528 of the Code of Civil Procedure, that the broadcaster be notified to present the recordings of the respective programme, within the time-limit for challenge.
2 - In addition to the means of evidence referred to in the preceding paragraph, only documentary evidence attached to the initial claim and challenge shall be allowed.
Article 91
Broadcast of decisions
1 - At the request of the Public Prosecutor's Office or of the injured party, and following a judicial decision, the operative part of final judgments on crimes committed though television, as well as the identification of the parties, shall be broadcasted by the broadcaster.
2 - The indicted party in crime proceedings reported on television and subsequently acquitted in a final judgement may request the court that the contents of the judgement be also reported by the broadcaster, in the same programme service and time slot, and with an equivalent time limit and focus.
3 - The disclosure of the operative part of final judgments mentioned in preceding paragraphs shall safeguard the rights of third parties.
CHAPTER VIII
Conservation of television heritage
Article 92
Legal deposit
1 - Recordings of programmes that are deemed to be of public interest due to their historical or cultural relevance shall be subject to a legal deposit, for the purpose of long-term conservation and access for research.
2 - The legal deposit referred to in the preceding paragraph shall be governed in a specific statutory instrument, which shall safeguard the interests of authors, producers and television operators.
3 - The State shall also promote the long-term conservation of and public access to recordings deemed to be of public interest made before the statutory instrument that governs the legal deposit comes into force, by means of specific protocols established with each operator.
CHAPTER IX
Final and transitory provisions
Article 93
Regulatory powers
1 - Save as otherwise provided for by law, it shall be incumbent upon the Regulatory Entity for the Media to regulate issues provided for herein and to monitor compliance therewith.
2 - It shall be incumbent upon the Regulatory Entity for the Media to examine proceedings on breaches provided for herein and upon the chairman thereof to apply the corresponding penalties.
3 - Fine amounts shall revert at 60% to the State and at 40% to the Regulatory Entity for the Media.
Article 94
Capacity reserve
1 - In the scope of the grant of rights of use for frequencies for the terrestrial digital television service of national coverage with unrestricted free-to-air access, transmission capacity shall be reserved for television programme services broadcasted by terrestrial means in analogue mode provided by operators holding licenses or concessions in force at the date of entry into force hereof.
2 - The right referred to in the preceding paragraph shall be claimed before the Regulatory Entity for the Media by interested operators, under penalty of expiry, within 60 days from the grant of rights of use for frequencies under consideration.
3 - Failure to exercise the right provided for in the preceding paragraphs shall be without prejudice to paragraphs 2 and 3 of article 25 hereof.
Article 95
Supervening amendments
The allocation of new licenses or authorizations as well as the amendment of the current legal framework shall not be grounds for television operators alleging change of conditions for the pursue of the activity, as far as the economic and financial balance is concerned, nor do they confer any entitlement to compensation.
Article 96
References
References to Law 32/2003 of 22 August shall be deemed to be made to the corresponding provisions hereof.
Article 97
Transitory provision
1 - Paragraph 1 of article 22 and paragraph 1 of article 52 shall be without prejudice to the calculation of ongoing time limits for licenses, authorizations and concession of television public service at the date of entry into force hereof.
2 - Article 23 shall apply to licenses and authorizations held by effective operators at the date of entry into force hereof, the first interim evaluation taking place at the end of the 1st or 2nd five-year period following the date of allocation or last renewal, as appropriate.
3 - Provisions hereof apply fully to companies that, at the date this statutory instrument comes into force, effectively pursue a television activity, defined as such in point a) of paragraph 1 of article 2.
Article 98
Repealing provision
1 - The following statutory instruments are hereby repealed:
a) Law 32/2003 of 22 August;
b) Decree-Law no. 237/98 of 5 August;
2 - Notwithstanding, articles 4 and 5 of Law 32/2003 of 22 August remain in force until the new legal framework that governs the openness and concentration in media ownership comes into force.
Approved on 30 May 2007.
The President of the Assembly of the Republic, Jaime Gama.
Promulgated on 12 July, 2007.
Let it be published.
The President of the Republic, Aníbal Cavaco Silva.
Countersigned on 13 July 2007.
The Prime Minister, José Sócrates Carvalho Pinto de Sousa.
