New Law on Monitoring, Control, Removal and Prevention of Access to Protected Content in a Digital Environment

A new law providing procedures for monitoring, control, removal and prevention of access to protected content in a digital environment was published on the 30th of November (Law 84/2021).

This legislative initiative follows the framework of the Portuguese Charter of Human Rights in the Digital Era, which provides, among others, the right to protection in the digital environment of works, performances, productions and other content protected by intellectual property rights.

Overall, this new law will have impact on holders of copyright and related rights; on intermediary network service providers; and, of course, on those who unlawfully make content protected by copyright and related rights available on the network.

Online content-sharing service providers, as defined in Article 2(6) of Directive (EU) 2019/790, were excluded from the scope of application of this diploma as their responsibility is already defined under Article 17 of the aforementioned Directive.

Regarding the substance of the law, new supervisory and control powers are attributed to the Inspectorate General for Cultural Activities (IGAC) for the identification of illicit availability of content protected by copyright and related rights.

This monitoring may be performed ex officio or as a result of a complaint. In turn, a complaint regarding the making available of protected content online may be submitted by the holder of the copyright or related right who has been harmed, or by the person representing him/her.

In addition, this law also establishes the duties (and its respective implementation) of intermediary network service providers, which are obliged to inform and comply with the determinations of the IGAC and to remove or make impossible the access, availability and use of content protected by copyright and related rights. The violation of these duties may lead to the application of administrative offences punishable by fines ranging from €5,000 to €10,000.

The IGAC is also competent to encourage the creation of codes of conduct and self-regulation agreements between intermediary Internet service providers, representative bodies of copyright and related rights holders and other interested parties, with the aim of expediting the procedures provided for by law.

This law will enter into force 60 days after its publication, which means it will take effect from 29 January 2022.

In an increasingly digital world, this legislative initiative reflects the legislator's effort to combat piracy, enhance cybersecurity and protect intellectual property rights in the fragile and infringement-prone environment of the internet.