Important Changes To The Electronic Communications Law

Author:Mr Luís Pais Antunes

Law no. 51/2011 was published on 13 September and came into force immediately on the following day. This law alters the legal rules on electronic communication networks and services for the sixth time. It also changes the definition of the powers of the regulatory authority in this area (Law no. 5/2004 of 10 February, or the "Electronic Communications Law/ECL")1.

In parallel with a significant number of small changes (in particular, changes in terminology made in the interests of uniformity, updating of the applicable legal framework and correction of legal cross-references called for because of the renumbering of the legislation in question), the new law makes substantial changes to the legislation applicable to electronic communications. It is true that the revision of the legislation was done first of all to respond to the pressing need to transpose the European Directives adopted at the end of 2009 for the protection of consumers of electronic communication services and more efficient management of the spectrum. These Directives were justified by the objectives of strengthening independent regulation and consolidation of the internal market, specifically through the creation of the Body of European Regulators of Electronic Communications (BEREC). However, it is clear that the Portuguese legislator wanted to go further than simply achieving those objectives.

The following changes made to the rules merit our special attention:

The establishment, as a general rule, of the barring of added value services provided by message (SMS, MMS or similar) by the providers of these services. The generic or selective activation of such services is now dependent on written consent from the subscriber in question. This change did not appear in the draft law that was initially submitted to the Parliament but was added during the discussion and voting stages. The establishment of new rules applicable to contracting, by either defining additional requirements as to the essential elements of the contract, or obligations as to its duration (such as making it impossible to make contracts for the provision of electronic communications services with consumers with an initial duration of greater than 24 months, it being a duty of communication service providers to offer all users the possibility of making contracts with a duration of 12 months). In this respect, also worthy of note is the end of the requirement to send service agreement contracts to ICP-ANACOM for approval. Companies that provide electronic communication services are now required to deposit one copy of the contracts agreeing the general contractual clauses with ICP-ANACOM and the Directorate- General of the Consumer, within a maximum of 2 days from...

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