Portugal: New Rules On Barring Valued-Added Message-Based Services!

From August 17 2013 onwards, only certain value-added message-based services (including SMS and MMS) must be barred by default, pursuant the Law 42/2013, of July, 3 that amended the Electronic Communications Law (Law 5/2004 of February 10).

Until then, audio-text services (with exception of televoting audio-text services) as well as value-added message-based services (including SMS and MMS) are barred by default and shall only be activated, generally or selectively, upon a written request from the subscribers.

With this new Law, only the following services must be barred, at no charge and by default:

• involve the sending of more than one message or the sending of messages on a periodic or continued basis;
• have sexual or erotic content.
• Such services may only be activated, generally or selectively, upon a written request from the subscribers.

This new law also establishes that, upon request of the subscribers, public communications networks or publicly available electronic communications services providers that support

value-added message-based services must, at no charge, bar all the communications to such services, regardless any contract with the provider of such value-added message-based services or its eventual termination.

The barring should be made within 24 hours after the subscriber's request, made in writing or by means of other durable medium available and easily accessible. After the 24 hours, no services, which barring was requested, can be invoiced to the subscriber.

Failure to comply with these rules is subject to fines up to 1 million € (depending on the nature of the infringer and the size of the company):

Under the transitional provision of this new law, the barring obligation of the value-added message-based services (including SMS and MMS) mentioned in (ii) above does not apply in case the subscriber, before August 17 (when the law enters in force), expressly and validly state, in writing or by means of other durable medium available, his willingness to access these services.

However, as far as messages with sexual or erotic content are concerned, the subscriber must confirm any previous statement made to access those services, otherwise they will be barred.

Finally, the support providers of value-added message-based services must, between July, 4 and August 17 2013, carry out a written notice to all their subscribers informing about (i) the new rules on accessing value-added services and (ii) the need to, in case they want, request the barring of the services, which access is going to be granted by default when this law enters in force.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.