3rd Week of Electronic Commerce in Portugal
Associação do Comércio Electrónico em Portugal (ACEP)
(Association for Electronic Commerce in Portugal)
Opening Session
?Electronic Commerce: Impacts and opportunities for the portuguese economy?
4 May 2006
Mr. Chairman of ACEP,
Mr. Chairman of the board of directors of Fundação Portuguesa das Comunicações (Portuguese Communications Foundations)
Dear colleagues of this panel,
Ladies and Gentlemen,
Firstly, I want to thank the organization, through the Chairman of ACEP, Mr. Alexandre Nilo Fonseca, for inviting ANACOM to this opening session of the 3rd Week of Electronic Commerce.
Today electronic commerce is inseparable from the reality we live in. In few years, digital electronic networks and, specially the Internet changed the economy, work and even the private life of all of us in a deeply revolutionary way.
After a first phase of euphoria in the field of communication and information technologies, and in spite of the slowing down in the digital economy, we are now going through a period of consolidation and sustained growth in the electronic commerce marketplace.
As in the rest of the world, electronic commerce in Portugal is showing clear signs of development. At national level, Internet access from home had an average yearly growth rate of almost 30% between 2002 and 2005, which was also a reason behind the growth trend in the number of people using the Internet to buy goods and services. With companies, the use of this new transaction medium is much more prominent, even with small companies, which increasingly consider it as essential to increase their competitiveness and create new products and services.
Since electronic commerce is based on the development of information technology, its potential naturally follows the evolutions in this domain. And it is known that this has been a remarkable evolution! That is the case with the broadband access or the multiplatform access, in which it is possible to establish an Internet connection without the use of a PC but rather through third generation mobile phones and digital TV. These developments are the origin of a wide range of new opportunities for online services, since the new services, applications and contents will create new markets and provide the means to increase the companies? productivity and to guarantee a better access by citizens to the information and communications tools.
However, we cannot ignore that electronic commerce has obvious constraints, related with the means used and the transactional character of the operations, both for the public interests and for the subjective rights involved in their use.
If the commercial transaction act used to be based on a very close relationship between the provider and the client and between the latter and the product or service, with electronic commerce there is a substantial change to this relationship. This change brings new added risks ? among others, new error possibilities in making up, declaring and transmitting one?s will, a greater risk of financial liquidation and a greater perception of legal insecurity in electronic transactions.
Bearing in mind that the legal insecurity made up a constraining factor for electronic commerce, the need to regulate this activity became evident for the States and the several supranational entities, particularly the European Union, with the necessary complement of an efficient supervision of the corresponding regulatory framework in force at national level.
Thus, the legal reference framework for electronic commerce in the internal market (and for the so called information society services, in general) was approved in 2000, at community level, removing the obstacles to the provision of online services in the European Union, in order to ensure the existence of an environment of legal security for the business and for citizens [Directive 2000/31/EC, of 8 June 2000 ? known as the Electronic Commerce Directive].
As it is common knowledge, the transposing of the community rules into the national legal framework took place in 2004 [Decree-Law no. 7/2004, of 7 January]. In broad terms, this decree-law regulates the provision of information society services, the responsibilities of the online services providers, online commercial communications and non requested communications and electronic contracts, also establishing the corresponding sanctioning framework.
Against international experience and the provisions of the community Directive itself, this decree-law also created a procedure for a temporary dispute solving ? for disputes that may come up regarding the legality of networked contents, given the extreme importance that a fast decision on the matter may have. This function is entrusted to the corresponding supervising entity, although the definitive solution of the litigation can only be judicial.
Thus, the Portuguese regulator chose to establish an administrative mechanism, of an extra judicial nature, while the Directive seemed to clearly point to an adjustment of the judicial mechanism already available within the national legal frameworks.
Although this is not the right place to question the adopted solution, the experience acquired during these two first years of the decree-law being into force shows that this mechanism is inoperative, and that it in fact leads to a deep diversity of interpretations by the involved administrative entities. Thus, a good, coherent a legally-safe implementation of the decree-law is hindered, fostering negative and positive competence conflicts.
It may therefore be appropriate to revoke this solution ? the temporary dispute solving ? in the near future, in order to minimize the serious and potential constraints that the decree-law imposes on any entity that intends to efficiently and strictly apply the dispute solving regime.
In order to ensure the implementation of the decree-law regarding electronic commerce, its regime includes a supervision model in the scope of which a central supervising entity ? ANACOM - was given powers in all the domains regulated by the decree-law, except in those matters under which scope a special law gives a sectoral power to another entity.
Thus, together with the central supervising entity, Decree-Law no. 7/2004 gives powers to sectoral supervision entities, namely to Comissão do Mercado de Valores Mobiliários (Portuguese Securities Markets Commission), Banco de Portugal (Bank of Portugal), to Instituto de Seguros de Portugal (Portuguese Insurance Institute) and to Entidade Reguladora dos Serviços Energéticos (Energy Services Regulatory Authority). The duties of these supervising entities in this scope are limited to the matters in which they have sectoral competence. In this sense, the corresponding intervention on their specific domains of activity is the boundary of the powers given to ANACOM, as the central supervision entity.
In short, and considering the transversal character of the framework established by the legal regime in force, it was intended, with this model, not to change the material distribution of powers resulting from previous legislation, only providing a general criterion that may allow for the resolution of cases that are under apparently concurrent powers, and for the prevention of a void in situations of negative conflict of powers.
For electronic commerce to be used in a safe and efficient way, it is naturally necessary that the legal framework involving the several items associated with the transaction of goods and services follows the market evolution in connection with the information society. Thus, besides the regulation of information society services, we have been witnessing the creation of a legal framework contemplating other worries and needs, from all of those who use this new commerce medium. This is the case with the legal regime applying to electronic documents and digital signature, to electronic billing, to the guarantee of intellectual property rights in the use of electronic commerce, to the security of networks and data confidentiality ? the latter being especially sensitive matters in the context of our current society.
However, in such a specific domain as electronic commerce, regulation per si is not enough: in parallel, self-regulation takes a fundamental role, as a means for a greater awareness of the players. Indeed, the success of electronic commerce depends on the adoption of commercial and practice rules ensuring the security of transactions, the confidence in the market and its own credibility.
In fact, this concern is the reason why the duties of fostering the creation and dissemination of codes of conduct by the different agents is imposed by the act on electronic commerce on supervising entities ? and on ANACOM itself, as the central supervising entity ? giving them at the same time the legitimacy to dispute the adopted codes of conduct, if needed.
In practical terms, self-regulation in the field of electronic commerce boomed in 2000 and 2001, with especial relevance in countries such as the United Kingdom, France, Germany and Belgium, but has been slowing down ever since, which justifies the recent call from the European Commission on a greater fostering activity by the State and private entities of the several Member States.
In this context, ACEP may take an essential role, as a discussion forum and a means to disseminate good commercial practices and a new ethics, thus making possible that values such as security, trust and credibility may guarantee the success of electronic commerce. My presence at this ceremony, representing ANACOM, is a pretext to once again state our firm intention to contribute in all possible ways to achieve this goal, knowing that, together, we are heading for a greater dissemination and development of electronic commerce.
UMIC also stands, since the first steps towards the implementation of the information society in Portugal, as a fundamental piece in defining and enabling a strategic and sustained path for electronic commerce at the national level, also having an extreme importance in the systematic following-up of the market evolution, nationally and internationally alike.
Associated with electronic commerce, we also find, at the international level, and especially at the European Union level, a set of other initiatives that aim at promoting the handling of specific problems emerging from the new information society. That is the case with the Action plan for a Safer Internet, which intends to foster a safer use of the Internet and the new online technologies, by funding activities against illegal and harmful contents on networks worldwide, with particular highlight to the protection of minors. Also in this domain, knowing of the extreme relevance and opportunity of this matter, and in spite of considering that it shouldn?t and couldn?t promote a project of this nature on its own, ANACOM took a role in alerting the Portuguese society for the need of a national initiative in the scope of the aforementioned Plan.
Before ending, I can?t but praise the union of efforts of the entities involved in the organization and making of this initiative aimed at fostering electronic commerce in Portugal.
Thus, associating itself to the work developed by all entities with importance in the domain of the information society, ANACOM, under the spirit that has always marked its activity, positions itself to contribute to an efficient supervision and dissemination of electronic commerce in Portugal in the best way possible, aiming, namely, at fully reaching the objectives set in the Lisbon Strategy and in the Technological Plan.
Lastly, allow me to point out, with pride, the fact that the opening session of the Week of Electronic Commerce is being held at the facilities of Fundação Portuguesa das Comunicações (Portuguese Communications Foundations), of which ANACOM is one of the founding members ? such as, in fact, CTT-Correios de Portugal, represented here by its Chairman. And it makes all the sense.
In fact, the purposes of this Foundation are not limited to the conservation and dissemination of the historical heritage of the communications sector according to a historical standing point; they also include publicising the new technologies and their contribution to the economic and social development of the country and the community. Such as we became used to talk about development at a much greater scale than the one imposed by physical boundaries, when we talk of communications we are also including a great diversity of activities.
It is thus gratifying to see the doors of Fundação Portuguesa das Comunicações (Portuguese Communications Foundation) open to an initiative such as this one, in fact, in line with what has been done and what we want to privilege.
Thank You.
