NEWSLETTER I INTELLECTUAL PROPERTY, MEDI A AND IT
CONTENTS INTELLECTUAL PROPERTY, MEDIA AND IT NEWSLETTER I 3RD QUARTER 2017 I CALL RECORDINGS WITH NEW STORAGE PERIODS II LEGISLATION III CASE LAW IV RESOLUTIONS, RECOMMENDATIONS, OPINIONS AND OTHERS
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INTELLECTUAL PROPERTY, MEDIA AND IT NEWSLETTER
I CALL RECORDINGS WITH NEW STORAGE PERIODS
The National Data Protection Authority ("CNPD") pronounced, in Deliberation no. 629/2010, on the legal framework, the grounds of legitimacy and the guiding principles for the correct compliance with Law no. 67/98, of 26 October, as amended by Law no. 103/2015, of August 24 (Personal Data Protection Act, "LPDP"), as well as the general conditions applicable to the processing of personal data resulting from the call recording. After almost seven years since its adoption, the CNPD considered that it would be necessary to monitor the revision of its legal framework and the implementation of its guiding principles, in particular regarding the retention period of call recording for the purpose of proving commercial transactions and any other communications concerning the contractual relationship.
Paragraph 3 of Article 4 of Law no. 41/2004, of August 18, as amended by Law no. 46/2012, of August 29, states that "(...) authorized communication recordings and respective traffic data are not hindered, when performed in the course of lawful practice, for the purpose of proving a commercial transaction or any other communication made within the framework of a contractual relationship, provided that the data subject has been informed accordingly and given their consent", thus constituting the grounds for call recording within the scope of contractual relations, to prove the transactions. However, the law does not establish a time period for the conservation of the recordings.
In the absence of a specific legal rule defining the retention period for call recording, it is incumbent on the CNPD to fix it, namely for the purpose of proving commercial transactions and communications made within a contractual relationship, as per Article 23, paragraph 1, point f) of the LPDP.
The CNPD recognized that the use of communication and information technologies is an essential tool and that, in recent years, the relationship between companies and data subjects has become less face-to-face, with an increase in the provision of services and goods by telephone, especially regarding the conclusion of distance contracts. The CNPD also acknowledged in the aforementioned resolution that technological development has made it possible for companies to have more effective mechanisms for proving the commercial transactions and communications carried out in the context of contractual relations with their clients, as far as the recording of phone calls. In this way, following the interests of the controllers relating to the preservation of recordings, the law has been setting higher retention periods for call recordings regarding certain contractual relations.
Accordingly, the CNPD partially reviews Deliberation no. 629/2010, defining new deadlines for the preservation of call recordings for the purpose of proving commercial transactions and any other communications regarding the contractual relationship.
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Deliberation no. 629/2010 enabled the retention of the call recordings for a maximum period of 90 days by the controller, provided that the purpose was to facilitate proving commercial transactions and other communications made within the contractual relationship.
The CNPD considered, on the one hand, the protection of the rights and interests of suppliers of goods or service providers, but also the rights and interests of consumers, data subjects, whose fundamental rights are affected by this data processing, and concluded that, for that purpose, the maximum period of 90 (ninety) days is inadequate and should therefore be adjusted accordingly.
Thereby, the CNPD decided to partially amend Deliberation no. 629/2010, regarding the maximum retention period for call recordings with the purpose of proving commercial transactions and any other communications regarding the contractual relationship, in the following terms:
In distance contracts, call recordings may be retained for a maximum period of 24 months plus a limitation period, except for distance contracts relating to the insurance activity, where the storage period must coincide with the period of duration o f the contractual relationship. The maintenance of the recordings is permitted until all the obligations arising from the contract are fulfilled;
In electronic communications contracts in which loyalty periods are established, the controllers must keep the call recordings for the duration of the agreed term of 6 or 12 months, or 24 months plus the corresponding limitation period of 6 months; regardless of the agreed loyalty periods, as well as the possibility of a re-loyalty of the data subject, that period shall not exceed the maximum period of 30 months;
In electronic communications contracts, there is a duty to preserve the recording of telephone calls for the duration of the agreement, plus a corresponding limitation period of 6 months, with a maximum limit of 30 months; in the event of the termination of the electronic communications contract, the recording of the calls is only kept for a period of 6 months, counting from the moment in which the contractual link between the parties occurs.
In the context of financial transactions, the period of conservation of the recordings, for the purpose of combating the laundering of illicit provenance and the financing of terrorism is of seven years from the execution of the respective operations.
The CNPD also decided to alter the maximum term of 90 days regarding the authorizations issued so far with the aforementioned purpose in the terms above.
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Decree-Law no. 93/2017 - Dirio da Repblica no. 147/2017, Series I of 2017-08-01
This Decree-Law creates a digital unique address and the public service of electronic notifications associated to this address and regulates the terms and conditions of the sending and receiving of electronic notifications, as well as the respective consequences.
Law no. 63/2017 - Dirio da Repblica no. 149/2017, Series I of 2017-08-03
Covers in the concept of smoking the new smokeless tobacco products which produce aerosols, vapors, gases or inhalable particulates and reinforces the measures to be applied to these new products in relation to exposure to environmental tobacco smoke, advertising and promotion, amending Law no. 37/2007 of 14 August.
Deliberation no. 780/2017 - Dirio da Repblica no. 161/2017, Series II of 2017-08-22
Updates the industrial property fees included in the annex of the ordinance, with effect from September 1, 2017.
Decree-Law no. 100/2017 - Dirio da Repblica no. 162/2017, Series I of 2017-08-23
First amends Law no. 26/2015 of 14 April, transposing Directive no. 2014/26/EU on the collective management of copyright and related rights and the granting of multi-territorial rights on musical works for online use in the domestic market, and amending the Copyright and Related Rights Code and the equitable compensation table annexed to Law no. 62/98 of 1 September.
Decree-Law no. 102/2017 - Dirio da Repblica no. 162/2017, Series I of 2017-08-23
This Decree-Law implements the SIMPLEX + 2016 measure "Simpler consumer information". It also standardizes the national rules on alternative dispute resolution for consumer disputes with the regulation of Directive no. 2013/11/EU of the European Parliament and the Council of May 21, 2013 on the matter, transposed into national law by Law no. 144/2015 of 8 September. In addition, it is no longer mandatory to display the document that proves the payment of the food security rate, and it is expected that the economic operator provides the supporting document to the supervisory authorities that so request. The establishments of the industrial sectors and the hotel and catering industry are no longer required to make public the routing of the used edible oils produced.
Regulation (EU) 2017/1563 of the European Parliament and of the Council of 2017-09-13. OJEU L-242 of 2017-09-20
Establishes the regime for the cross-border exchange, between the EU and third countries, of accessible copies of certain works and other material protected by copyright and related
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rights for the benefit of the blind, the visually impaired and the persons with other difficulties accessing printed texts.
Directive (UE) 2017/1564 of the European Parliament and of the Council of 2017-09-13. OJEU L-242 of 2017-09-20
Sets forth the regime of the permitted use of certain works and other material protected by copyright and related rights for the benefit of the blind, the visually impaired and the persons with other difficulties accessing printed texts, and amends Directive np. 2001/29/EC on the harmonization of certain aspects regarding copyright and related rights in the information society.
Ordinance no. 285/2017 - Dirio da Repblica no. 188/2017, Series I of 2017-09-28
Regulates the ways of delivery of the Citizen's Card and respective activation codes, personal code (PIN) and personal unblocking code (PUK), to citizens residing abroad, as well as the security conditions required for such delivery and the associated fees.
Ordinance no. 286/2017 - Dirio da Repblica no. 188/2017, Series I of 2017-09-28
Regulates the official and exclusive models of the citizen card, the physical security elements that compose it, the technical and safety requirements to be observed in the capture of the facial image and the fingerprints of the holder of the application, as well as the concrete measures of inclusion of citizens with special needs in the information society, to be observed in the provision of the citizen support service.
Ordinance no. 287/2017 - Dirio da Repblica no. 188/2017, Series I of 2017-09-28
This Ordinance regulates the technical mechanisms for access and reading of the data contained in the integrated circuit of the citizen's card, the general term of validity of the citizen's card, the situations and terms in which the Citizen's Portal functions as a reception service of the requests for the card's renewal, the citizen card cancellation system by telephone and electronic, the amount owed by the Institute of Registries and Notaries, IP (IRN), the Administrative Modernization Agency (AMA), for the exercise of their powers, as per Article 23 of Law no. 7/2007, of February 5, as amended by Laws no. 91/2015, of August 12, and no. 32/2017, of June 1, and the rules regarding the conservation of the file with the citizen's card's personal unblocking code (PUK).
III CASE LAW
Judgment of the Court of Appeal of Coimbra, Judgement of 2017-06-28, Case no. 24/15 www.dgsi.pt
According to the Court of Appeal of Coimbra, the broadcasting of ambient music by radiotuned equipment, even though it fulfills the objective element of the crime of usurpation, as defined by European jurisprudence, does not fulfill the subjective element.
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Judgment of the Court of Justice (Second Chamber), of 2017-05-04. OJEU C-213, of 2017-
07-03 Case C-13/16 (Reference for a preliminary ruling Directive no. 95/46/EC - Article 7 (f) Personal data - Requirements for the lawfulness of the processing of personal data - Concept of "need for the legitimate interest of a third party" - Request for the communication of personal data of a person responsible for a car accident to the exercise of a right in a judicial procedure - Obligation of the person responsible for the treatment to grant that request Inexistence
According to the Court's interpretation, Article 7, point f of Directive no. 95/46/EC of the European Parliament and of the Council, of 24 October 1995, on the protection of individuals with regard to the processing of personal data and the free movement of such data must be interpreted as not imposing an obligation to disclose personal data to a third party in order to enable it to bring an action for damages in a civil court for damage caused by the person concerned in the protection of such data. However, such rule does not preclude such communication on the basis of national law.
Judgment of the Court of Appeal of Coimbra no. 251/2017 - Dirio da Repblica no. 130/2017, Series II of 2017-07-07
It rules unconstitutional the interpretatively extractive rule of Article 2 of Law no. 62/2011, of December 12, and Articles 35, no. 1, and 101, no. 2, of the Industrial Property Code, by establishing that, in a necessary arbitration established under that Law, the party cannot be defended, by exception, by invoking the invalidity of a patent, with only interpart effects.
Judgment of the Court of Justice (Second Chamber), of 2017-06-14. OJEU C-277/8, of 2017-08-21 Case C-610/15 (Reference for a preliminary ruling -- Intellectual and industrial property -- Directive 2001/29/EC -- Harmonization of certain aspects of copyright and related rights -- Article 3(1) -- Communication to the public -- Definition -- Online sharing platform -- Sharing of protected files, without the consent of the rightholder).
According to a decision of the Court of Justice, the concept of "communication t o the public" within the meaning of Article 3, paragraph 1, of Directive no. 2001/29/EC of the European Parliament and of the Council, of 22 May 2001, on the harmonization of certain aspects of copyright and related rights in the information society is to be interpreted as covering, in circumstances such as those at issue in the main proceedings, the making available and management, on the Internet, of a sharing platform that, through the indexing of metadata relating to protected works and the provision of a search engine, allows the users of that platform to locate such works and share them in a peer-to-peer network.
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Judgment of the European Court of Human Rights of 2017-09-05, ECHR 268 (2017) Case 61496/08 (Brbulescu v. Romnia)
According to the interpretation of the European Court of Human Rights, the monitoring of electronic communications to employees by the employer is a violation of their right to privacy and correspondence.
The case of Brbulescu v. Romania refers to the decision of a company that dismissed an employee after monitoring his electronic communications and accessing his content.
According to the European Court of Human Rights, there was an infringement of Article 8 of the European Convention on Human Rights, concerning the right to respect for private and family life, home and correspondence, as the employer could not have access to the content of the employee's electronic communications without his consent and that the national courts did not protect the employee's right to privacy.
IV RESOLUTIONS, RECOMMENDATIONS, OPINIONS AND OTHERS
Public consultation of the Government on the General Data Protection Regulation
The public consultation launched by the Government to approve national legislation on the General Regulation on Data Protection (EU) 2016/679 of the Parliament and of the Council, approved on April 27, 2016 (RGPD), was held until September 30, 2017.
The topics covered are the processing of special categories of personal data (genetic, biometric and health data), the processing of personal data at the workplace, the portability of data, the conditions applicable to the consent of children in relation information society services, the right to erasure ('right to be forgotten'), individual automated decisions, including the definition of profiles and the designation, position and duties of the data protection officer.
Opinion of the European Data Protection Supervisor on the proposal for a Regulation on privacy and electronic communications (Privacy and electronic communications Regulation) (2017 / C 234/03)
This opinion defines the position of the European Data Protection Supervisor (EDPS) on the proposal for a Regulation on privacy and electronic communications, which repeals and replaces the Directive on privacy and electronic communications.
The EDPS welcomes the ambition of the Regulation to provide a high level of protection with regard to content and metadata and supports the objective of extending confidentiality obligations to a wider range of services, in particular so-called audiovisual content distribution services, which reflects the advancement of technology.
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Considers also that the decision to grant sanctioning powers only to data protection authorities and the availability of mechanisms for cooperation and consistency within the future European Data Protection Committee (ECDC) will contribute to more consistent and effective enforcement of legislation in the EU.
At the same time, the EDPS expresses concerns as to whether the proposal in its current drafting can indeed fulfill the promise of ensuring a high level of privacy protection in electronic communications. Considers that much remains to be done: the complexity of the rules as outlined in the Proposal is daunting. Communications are subdivided into metadata, content data, data sent by terminal equipment. Each of these groups is entitled to a different level of confidentiality and is subject to different exceptions. This complexity may create a risk - perhaps inadvertently - of gaps in protection.
This Opinion indicates that most of the definitions on which the proposal is based will be negotiated and decided in the context of a different legal instrument: the European Code of Electronic Communications and as such there is no legal justification for linking the two instruments so closely. The Opinion considers that the definitions of competition and market impact of the Code are simply inadequate in the context of fundamental rights. The EDPS therefore advocates the inclusion of a number of necessary definitions in the Privacy and Electronic Communications Regulation, taking into account their scope and intended objectives.
The Opinion draws attention to the issue of the processing of electronic communications data by controllers other than providers of electronic communications services. The additional protections offered to communications data would be unsuccessful if they could be easily circumvented by, for example, transferring data to third parties. The Opinion also demonstrates the concern that the Regulation will ensure that the rules on privacy and electronic communications do not allow a level of protection lower than that established in the RGPD. For example, consent must be genuine, offering users a free choice in compliance with the RGPD.
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