Decreto-Lei n.º 7-2004, de 7 de Janeiro [Decree-Law No. 7/2004 of 7 January], Lei do Comércio Electrónico [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: