WILMAP: Portugal

LEGISLATION

Decreto-Lei n.º 7-2004, de 7 de Janeiro [Decree-Law No. 7/2004 of 7 January], Lei do Comércio Electrónico, January 7, 2004 [English Version]
 
[(1) Transposes into national law Directive 2000/31/EC of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce). In general, the decree presents a scope similar to the Directive. When examined in more detail though, one can observe that the decree, in certain aspects, went beyond the Directive, regulating a number of legal issues that were not explicitly covered by the Portuguese legal system and neither by the Directive. 
 
(2) The provisions of the Decree-Law that address the liability of service providers can be found in Chapter III (Articles 11 – 19), entitled "Liability of networking service providers."
 
(i) The statute implements the liability regime estiblesed by the eCommerce directive for the activities of “mere conduit” (Article 14), “caching” or intermediary storage (Article 15) and “hosting” or main storage (Article 16).
 
(ii) Article 17 regulates the intermediary liability of service providers for content aggregation. This notion refers to hyperlinking and search engines as these are deemed to aggregate “content” by referencing third-party content. Portugal is thus one of the few Member States which introduced specific norms dealing with liability for hyperlinking and liability of search engines. Content aggregator service providers, which allow access to illegal contents by hyperlinking or search engines, are subject to the same liability regime of hosting service providers.
 
(iii) Article 18, No.1, establishes that in cases of linking and hosting (Articles 16 and 17), the service provider is not bound to remove the disputed contents or to disable access to the information on the grounds of a claim made by an interested party, where the illegality is not obvious (i.e., in cases in which the information or activity is not manifestly illegal). Additionally, Article18 regulate the procedure of out-of-court preliminary dispute settlement regarding cases, whose illegality is not obvious. According to such procedure, any interested party may appeal to the relevant supervisory entity (the authority is designed according to its competences; ANACOM – Communications National Authority – is the competent authority by default). Moreover, whoever has a legal interest in maintaining that content online is likewise entitled to appeal to the supervisory entity against a decision of the provider to remove or disable access to that content. The recourse to these procedures does not prejudice the capacity of any interested parties to obtain judicial redress through an action brought before a civil or criminal court.
 
(iv) Article 19 – entitled “Relationship with the right to information” – establishes that content aggregation shall not trigger liability on the sole ground that there are illegal contents in the linked website, despite the awareness of this fact by the provider. The provision further elaborates on this point by stating that the link is legal if performed with objectivity, and represents a way of exercising the right to information. On the contrary, the link shall be deemed illegal if it is a way of adopting the illegal content being linked to as one’s own. The assessment of the legality of linking is made by considering the circumstances of the case, namely:
  1. the possible confusion of contents of the linking and linked websites;
  2. the automatic or intentional character of the link;
  3. the area of linked website to which the link is made.]
 
Código do Direito de Autor e dos Direitos Conexos (CDADC) [Code of Copyright and Related Rights], Law No. 45/85 of September 17, 1985, last amended by Law n.º 16/2008 [English Version]
 
[This law covers the legal protection of intellectual creations in the literary sphere and artistic works. It transposed into Portuguese legislation EU Directive n.º 2004/28/EC of 29 April 2004.] [For a detailed overview of the Copyright legal framework in Portugal see the chapter on Portugal by D. Moura Vicente in R.M. Hilty and S. Nérisson (eds), Balancing Copyright – A Survey of National Approaches, MPI Studies on Intellectual Property and Competition Law 18, Springer-Verlag Berlin Heidelberg 2012.] 

BILLS AND PENDING PROPOSALS

[There are currently no known new legislative proposals on the issue of intermediary liability.] 

DECISIONS

[There are currently no known cases that have been brought before the courts on the issue of intermediary liability.]

Administrative Procedures

[As mentioned above, Portugal has specific intermediary  liability provisions (Article 17, Decree-Law No. 7/2004) for service providers associated with content by means of search engines, hyperlinks or similar procedures (e.g., directories). As a general rule, the intermediary is subject to the same liability rules as host providers. Two Portuguese administrative resolutions (provisional settlement of disputes) have been issued against host providers and intermediary service providers associated with content by means of search engines. These two cases were settled through (administrative) injunctions based on Article 18(2) of the Portuguese e-commerce law (see above).]
 
Administrative decision from the National Authority of Communications (ANACOM), Nokia Portugal v. Verza Facility Management, Google and others, May 18, 2004
 
[This administrative resolution ordered a host provider to remove the incriminated website from the network. The decision also required all network content aggregation providers (permitting a direct or indirect access to the incriminated website, and thus associated with illicit content) to disable access to the website. This ruling seems to cover, at least indirectly, hyperlink providers. This resolution, which is very brief, does not offer further details.]
 
Administrative decision from General Inspection of Cultural Activities, 2005
 
[This administrative resolution also imposed on host providers and service providers associated with content an obligation to block access to a website that infringed copyright. This resolution, which is not available, does not offer further details.]

OTHER RESOURCES

International Encyclopaedia of Laws for Cyber Law (ed. Prof. Dr. Jos Dumortier), National Monograph “Portugal” by Antonio Lourenço Martins, José Garcia Marques, Pedro Simões Dias, Kluwer Law International, http://www.kluwerlawonline.com/toc.php?pubcode=CYB&PHPSESSID=ff8vbauqvfp...

CONTRIBUTORS

Norberto Andrade
Email address: nandrade at law.berkeley.edu

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