Portugal (PT)

Portugal

After consulting with the CNPD, which is the Portuguese governmental organization in charge of regulating the use of personal data, I obtained the following answers:

1. One's email address is considered personal data. Its usage by third parties is regulated by Portuguese law 69/98.
   
2. The same law (69/98, article 12, number 2) grants the right to demand the removal of one's personal data from direct marketing databases -- this includes email addresses, as stated in 1.
   
3. This right is granted to the subscriber, who can refuse to receive any unsolicited calls, snail mail or email sent for the purpose of direct marketing.
   
4. Should the offending person or persons continue to send UCE after the rights described above have been exercised by the recipient, he/she may file a formal complaint with the CNPD.
   
5. The CNPD's jurisdiction is limited to the Portuguese territory.

Therefore, this policy can be considered as being mainly an 'opt-out' scheme. However, the same law states that an individual may refuse to give its personal data when solicited to by any company.

The law I mentioned, 69/98, transposes the EU directive 97/66/CE of 97/12/15 to national law. It clearly states, in its article 12:

1. The previous consent of the recipient is necessary for all direct marketing activities performed through the use of automatic calling machines or fax machines.
   
2. The subscriber has the right to oppose, free of charge, to receive unsolicited direct marketing calls made through other means not mentioned in the previous paragraph.
   
3. The rights mentioned in the previous paragraphs are granted to all subscribers, individuals or companies.
   
4. All obligations created by this article apply to the entities promoting direct marketing actions.

Also, according to law 67/98 (transposes the EU directive 95/46/CE of 95/09/24), article 5, number 1b, one's personal data can only be used for the purposes it was collected for, being its later processing for other incompatible purposes forbidden.

The same law specifies, in its article 6, that the processing of personal data can only be made if the data owner has given its express consent, with some exceptions, such as:

1. The obligation to fulfill the contract terms
   
2. The obligation of the entity responsible for the processing to comply with national law
   
3. The protection of the interests of the data owner, when the latter is physically or legally unable to give his consent
   
4. The need to access the data during exercising of public authority (such as a criminal investigation)
   
5. The protection of the legitimate interests of the entity processing the data or of the legitimate interests of a third party receiving the data, as long as the data owner's interests, rights and liberties aren't violated.

The same law's article 10 basically forces the entity collecting the data to inform the data owner of the purposes of the collection, if the data owner doesn't have that knowledge already.

Article 11 basically grants each individual the right to know what is being done with his data, whom has his data been given to and the right to demand that corrections be made to his data.

Being very important, article 12, paragraph b) basically states that the data owner may oppose to the treatment of his data for direct marketing purposes, or may demand to be informed when his data is given to third parties for direct marketing purposes, or when his data will be used for direct marketing purposes, before the data is actually used, and has the right to oppose to such usages, free of charge.

Therefore, we already have the right to refuse to let our data be used for direct marketing purposes, because the entity collecting your data must inform you of the purposes of the data collection.

If the very same entity sells your data to a direct marketing company, the new activity must be compatible with the original purpose that led to data collection. I think that one may have problems proving such incompatibility, and being forced to wait until the first unsolicited commercial mail/email arrives to enforce one's right to refuse it. One workaround seems to be the inclusion of a message demanding to be informed of such usage, according to the law 67/98, article 12, paragraph b).

So, you actually have an 'opt-out' scheme, although it isn't very clear.

Regarding the other initiatives you mentioned, they were covered by the media recently, but I don't know if those bills have passed in the parliament already.

If you can read Portuguese, all the legislation is available online at http://www.cnpd.pt.

(Vasco Veloso 1999-01-07/1999-01-08)
 

In Portugal, the Government presented recently to Parliament a bill that introduces new regulations in Law on Advertisements, such as:

concerning anonymous advertisement (e.g. prospectus), consumers can forbid this kind of advertisement if they put on their mail boxes a warning that says: "Advertising here-No thanks".

concerning directed advertisement - (to named people), consumers that don't want to receive such advertisements must include their names and addresses in a list.

The government intends to extend this prohibition to advertisements made by phone or fax. Consequently, to contact consumers by fax or by automatic call, an enterprise must have a prior authorisation from that consumer. [see 10.1 97/7/7EC, 12.1 97/66/EC] Therefore, concerning non-automatic calls (which require human intervention), consumers who are not interested in receiving such advertisements must also include their phone numbers in a list. [No mention has been made concerning email thus far, but it is all too easy to envisage a similar "opt-out list". -- B.]

Thanks to the Associação Regional de Informação sobre Consumo e Ambiente

"The Portuguese government haven’t transposed the Directrives 97/66/EC and 97/7/EC into national law yet. But it has to be done, and we think that will not take more than one year [from end June 1998]." [That's good, considering the implementation date for 97/66/EC is 24 October 1998... B.]

Thanks to Associação Portuguesa de Direito do Consumo

(Beebit 1998-06-08)