On the 29^th of January 2022, a brand new and unique set of rules applying specifically to players in the national online content market entered into force in Portugal. Law no. 82/2021, 30 of November 2021 (“Law no. 82/2021”), which is not a typical transposition of EU legislation into Portuguese law, establishes new rules and procedures for monitoring, controlling, removing and preventing access to content protected by copyright and related rights in the digital environment, and creates new obligations for intermediary networking service providers.

This justifies a special attention to the content of Law no. 82/2021 and its consequences for the different undertakings in the digital ecosystem.

Firstly, it establishes the competence of Inspeção-Geral das Atividades Culturais (“IGAC”) to monitor and control the access to protected content (by copyright and related rights), and of its respective general inspector of cultural activities to determine the removal or prevention of access to such content, if it is unlawfully made available.

For this purpose, it is relevant to note that protected content is unlawfully made available when one (i) communicates, makes available to the public or stores the content without the rightsholders’ authorisation, (ii) makes available services or means intended for infringement of rights by third parties, or for interference with the normal and regular functioning of the works and services market; or (iii) makes available services intended for the circumvention of effective technological measures for the protection of rights, or information devices for the electronic management of those rights.

Secondly, Law no. 82/2021 creates relevant obligations for those responsible for making available the content protected by copyright and related rights, as well as for the intermediary service providers, namely those providing Internet access services, content association services (search engines) and hosting services.

Finally, it regulates the way in which rightsholders of the infringed copyright or related rights, or their representative collective management organizations, may submit a complaint to IGAC about the unlawful making available of their own content, or appeal against an IGAC decision of refusal to determine the removal or prevention of access to said content.

Complaint

If a rightsholder’s protected content is being unlawfully made available, the rightsholder, or their representative, may submit a complaint to IGAC, in order to trigger the procedure for the removal or prevention of access to said content.

This complaint must contain, first and foremost, the elements allowing the identification of the electronic location where the protected content is made available, the protected content itself, its respective rightsholders, and any collective management organizations which represent them, as well as a declaration, under oath, that the making available of the protected content was not authorized by the rightsholders or their representatives. When possible, the alleged responsible for the making available of the content and the intermediary service providers must also be identified.

IGAC shall notify the final decision regarding the complaint to the complainant, the responsible for the making available of the content and, whenever possible, the intermediary service provider.

Monitoring and blocking the content

In general, no later than 10 days after the complaint by the injured rightsholder or their representative is submitted, or alternatively, 10 days after the discovery by IGAC of an Internet website or service which unlawfully makes available protected content, this authority must notify the party responsible for the infringement to, within 48 hours, cease the unlawful making available of protected content and remove the service or content. It should be noted, however, that this notification is without prejudice to possible criminal liability.

If the protected content is not remover within 48 hours, IGAC notifies the intermediary service providers to, in turn, remove or prevent access to the protected content.

Notification to the party responsible for the infringement is not necessary when the 48 hours’ prior notice substantially reduces the usefulness of the decision of removal or prevention of access, namely when the content is made available in real time for a limited period or when is not possible to identify or contact the infringer. In both cases, the intermediary service provider is instead immediately notified.

After the removal or prevention of access is determined, it shall remain in effect for a maximum period of 1 year, unless the interested party in the making available of the content can demonstrate that they have put an end to their unlawful behaviour; or until the decision of the termination of these effects by IGAC or a competent authority. However, an extension of the effects of the measures may be requested before the expiration of the aforementioned periods, provided that the interested party in said extension is able to demonstrate that protected contents are still being unlawfully made available.

In the exceptional cases where there is no notification of the responsible party and the intermediary service provider is instead immediately notified, the removal or prevention of access will only remain in effect until the ceasing of the unlawful activity, but never for more than 48 hours.

Obligations of the intermediary service providers

As noted, under Law no. 82/2021, intermediary service providers are obliged to remove or block access to protected content within 48 hours of their notification or, where this period would substantially reduce the usefulness of the removal or prevention of access, within the shortest possible time.

They may fulfil this obligation through the prevention of access to a given URL, DNS or IP. However, the prevention of access to an IP is only allowed if that IP address is proven to be typically and essentially, or repeatedly and recurrently, used for the unlawful making available of protected content, with other uses being non-existent or residual.

Additionally, providers must immediately inform IGAC when they become aware of manifestly unlawful activities carried out through the services they provide, and they must also comply with requests for identification of the recipients of services with whom they have hosting agreements. It is important to note that providers cannot be held responsible for measures adopted in compliance with an instruction by IGAC.

Although this regime is underpinned by the general rules in the eCommerce law, it is noteworthy that the obligations of intermediary service provider are in fact reinforced with this new law. An equally relevant and interesting feature of Law no. 82/2021 is the high monetary value of the fines it imposes on providers for their non-compliance with the abovementioned obligations. In fact, this non-compliance may give rise to administrative offences punishable by fines of between €5.000 and €10.000, for which IGAC is competent.

Appeal against a judicial decision and subsidiary law

Another curious aspect of the new Portuguese regime is the fact that the entire procedure for the monitoring, controlling, removing and preventing access to protected content in the digital environment is carried out by an administrative entity – IGAC – without any judicial scrutiny. As previously stated, both responsible parties and intermediary service providers must comply with IGAC’s administrative decision without it ever being subject to the control of a judicial court.

Despite this lack of judicial intervention in the determination of the measures itself, anyone who is directly and effectively harmed by a decision of IGAC may, however, appeal to the Tribunal da Propriedade Intelectual (Intellectual Property Court), within 30 days from the notification of said decision.

Final remarks

Law no. 82/2021 follows on from Law no. 27/2021, of the 17^th May, which approved the Portuguese Charter of Human Rights in the Digital Era, namely its Article 16(2), which set forth the need for a special law to define the rules that would prevent the access and removal of contents made available in manifest violation of copyright and related rights.

However, it is not clear how the new regime articulates with other Portuguese legal and regulatory provisions, namely the Administrative Protocols previously signed between IGAC, rightsholders and some of the intermediary service providers, which are already precisely aimed at responding to the making available in the digital environment of protected content (allowing, for instance, the blocking of dynamic IP and trying to prevent live streaming).

On the other hand, Law no. 82/2021 also comes in the wake of some “hardening” of the applicable regime to intermediary service providers, which has been expressed over time by the European Commission in several Communications and in some ad hoc proposals, such as the Digital Services Act and the Digital Markets Act, currently under discussion.

Within this context, we shall also highlight that this new law excludes online content sharing service providers from its scope of application, under the justification that they are subject to the specific regime on copyright and related rights arising from Directive (EU) 2019/790, of the 17^th of April 2019, which will soon be transposed in Portugal. This is somehow surprising considering that the issues under discussion under Law no. 82/2021 do not appear to be exactly the same as the ones addressed in said Directive, notably in terms of subjective scope of application.

It will be interesting to see how Law no. 82/2021 applies and develops within the recently growing European and Portuguese regulatory framework applicable to the making available of protected content in the digital environment. In any case, all market players must now turn their attention to ensuring compliance with the new obligations, which are already applicable and enforceable.