Abstract
This Chapter gives a brief overview of the framework for secondary liability of Intermediary Service Providers (ISP) in Portugal, in accordance with the legal standards given by Decreto-Lei no. 7/2004. As the framework has been developed in accordance with the European Union’s legal standards, the main characteristics are those which flow from the E-Commerce Directive. Of particular interest in this framework is the way that the immunity requirements established in Decreto-Lei no. 7/2004 can also be seen as imposing duties on ISP’s to act. Accordingly, the lack of compliance with such duties can render ISP’s secondarily liable. This Chapter will demonstrate how, according to this framework, omissions can be the main basis for secondary liability and if such omissions (and the respective duties to act) can be found outside the legal framework of Decreto-Lei no. 7/2004 as, for example, in the law of contracts.
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Notes
- 1.
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, which concerns certain legal aspects of information society services, in particular electronic commerce, in the European Internal Market [2000] OJ L 178/1.
- 2.
The scope of each service is defined in Sections 14 to 17 of Decreto-Lei no. 7/2004, of 7 January, and will be further discussed in this Chapter. The Portuguese legislator decided to include the content association service type, which goes beyond the type of services addressed in the E-commerce Directive. However, as we will see below, the immunity standard for these service providers does not differ from that applicable to hosting services.
- 3.
This is subject to a few exceptions relating to injunctions sought against access ISPs. But even in those cases, as the ISPs clearly complied with the court order, no secondary liability was ever discussed. The most recent of these injunctions was sought against “mere conduit” service providers for the blocking of Pirate Bay’s website, a decision awarded by the Portuguese Intellectual Property Court, in March 2015 (unpublished ruling). As a result, the Pirate Bay is, actually, blocked in Portugal (Van der Saar 2015).
- 4.
See Section 12 of Decreto-Lei no. 7/2004, which implemented Article 15 of the E-commerce Directive.
- 5.
For example, the search engine ‘SAPO’ (www.sapo.pt), originally developed by a Portuguese University (Universidade de Aveiro).
- 6.
For example, ‘OLX’ (www.olx.pt), a Portuguese website where users can advertise the selling of their own belongings to potential interested persons.
- 7.
The three most relevant players who provide ‘mere conduit’ services in Portugal are MEO—Serviços de Comunicações e Multimédia, S.A.; NOS Comunicações, S.A. and Vodafone Portugal—Comunicações Pessoais, S.A.
- 8.
This is true at least in respect to higher courts, which define Portuguese jurisprudence. This lack of higher court decisions is due, mainly, to the absence of important ISPs with registered offices in Portugal and, secondarily, to the fact that most cases that reach a court of law do involve an identifiable person that is primarily liable.
- 9.
Also, as many ISPs are situated in another EU member state, Portuguese liability rules do not apply to them, according to paragraph a) of no. 1 of Section 5 of Decreto-Lei no. 7/2004.
- 10.
This applies to services of information transport and information access, typically offered by telecommunications companies throughout the world.
- 11.
This refers to temporary storage. The Portuguese legislator decided to rephrase the expression given in the Directive (precisely, ‘caching’) to ‘Intermediary storage’. This phrasing is unwise because it can lead to misunderstandings; every type of service predicted in the immunity rules is applicable only to intermediary services.
- 12.
Under the name ‘Main storage’.
- 13.
This is similar to the common law definition of constructive or apparent knowledge.
- 14.
Martinez (2005, 275–290) defends this position, stating such liability for omission cannot exist under the Portuguese legal framework for ISPs secondary liability.
- 15.
The ‘mere conduit’ ISPs are, however, still bound to comply with the general obligations towards competent authorities stated in Section 13 of Decreto-Lei no. 7/2004 (such as compliance with determinations designed to prevent or end an infringement). If the ISP does not comply with such obligations, it is possible it can be held liable for omission towards the complainant if such lack of compliance gave rise to damages produced by the unlawful contents—and without prejudice to the criminal or administrative liability which can arise due to the lack of compliance of the orders issued by the competent authorities.
- 16.
Additionally, ISPs engaged in caching services are bound to maintain the information updated and the use of technology according to the common rules of the related business sector.
- 17.
And this is true also of Section 17, for content association services applying the same framework, although in this part of the Chapter I refer only to Section 16.
- 18.
See 17 USC § 512 (US).
- 19.
Section 512(c)(3)(a) states that a notification to an ISP for removal of a certain content must comply with the following requirements: it has to have a physical or electronic signature, belonging to the rights’ holder or its duly empowered representative; it has to clearly identify the works where the copyright infringement is being observed; it must clearly identify the material(s) which are infringing the copyrights of the works and also provide any other information which can allow the ISP to identify the infringing content; reasonable and correct information that allows the ISP to contact the complainant, such as a valid e-mail or address; a statement in which the complainant warrants that the content or materials subject of the complaint have not been authorized by the rights’ holder or its representative; finally, a declaration where the complainant warrants, under penalty for perjury, that the complaint is true and accurate and, if such complaint is not presented by the rights’ holder, that it is dully authorized or empowered to present the compliant in such rights’ holder behalf.
- 20.
For example, in trademark infringement, the complainant shall produce sufficient evidence that it holds the trademark by indicating the trademark registry number and the trademark offices where it is registered.
- 21.
For example, some years ago, one Portuguese Public Prosecutor closed a case of copyright infringement moved against more than one hundred users of a peer-to-peer service used for the unauthorized download of copyrighted films. The Public Prosecutor took the view that such downloading was legal as it came under the private copying exemption (Van der Saar 2012). Even at the European level, this issue—downloading from unlawful sources—was only resolved (correctly, according to this author’s perspective) by the ECJ’s ruling in case C-435/12 ACI Adam v. Stichting de Thuiskopie (ECLI:EU:C:2014:254), stating that the private copying exemption only applies to copies derived from lawful sources. For the purposes of this chapter, we are addressing copyright infringement of material whose unlawfulness is evident.
- 22.
Section 13.
- 23.
See recital (48) of the E-Commerce Directive.
- 24.
A clear-cut example in which the ISP may be secondarily liable for omission due to an external interference is in the situation where a third party introduces a virus upon the ISP network and it is proven that the ISP’s security measures were not updated.
- 25.
Under Section 13(c) of Decreto-Lei no. 7/2004, ISPs are obliged to comply with the determinations of competent authorities (such as courts) in order to prevent or end an infringement, namely the removal or disabling of access to information.
- 26.
One common type of temporary measure which can be imposed on an ISP is the obligation to block access to a certain content or to remove it from its database. Although, as the European Court of Justice has discussed in many of its rulings, mostly when dealing with blocking injunctions over copyright infringing content, this obligation cannot disregard fundamental rights, such as the right of access to information, or the right of privacy. The latest ruling on this matter—Case C-314/12 UPC Telekabel Wien (ECLI:EU:C:2014:192)—clarified that such obligation could be imposed, although subjected to restrictive limitations which, overall, may impede such blocking injunctions to be effective in practice (Sousa e Silva, 2015, 222).
- 27.
E-Commerce Directive, art. 15 (2).
- 28.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L 167/10.
- 29.
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004, on the enforcement of intellectual property rights [2004] OJ L 195/16.
- 30.
InfoSoc Directive, art. 8 (3) and Enforcement Directive, art 9 (1) (a), respectively.
- 31.
Portuguese Civil Code, Sections 800 (2) and 809; Section 18 (a), (b), (c) and (d) of Decreto-Lei no. 446/85 of 25 October.
- 32.
Portuguese Civil Code, Section 799.
- 33.
Portuguese Civil Code, Section 487.
- 34.
Portuguese Civil Code, Section 494.
- 35.
The statute in Portugal is called direito de regresso.
- 36.
This change would work only if it was accompanied by the adoption of legal standards regulating the requirements for a valid notice from the injured party; this is one more extra reason to regulate the requirements that a notice must have in order to oblige an ISP to act.
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Fachana, J. (2017). ISP Secondary Liability: A Portuguese Perspective on Omissions as the Basis for Secondary Liability. In: Dinwoodie, G.B. (eds) Secondary Liability of Internet Service Providers. Ius Comparatum – Global Studies in Comparative Law, vol 25. Springer, Cham. https://doi.org/10.1007/978-3-319-55030-5_4
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