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Media freedom and media pluralism

Law 78/2015 expressly promotes the dual objectives of freedom and pluralism of expression and the safeguard of editorial independence of the media as its ultimate objectives, which also benefit from protection under the Portuguese Constitution.

Transparency of media ownership is essential to guarantee a democratic and pluralistic media environment. One important goal the legislator pursued was to ensure that clear, precise, up-to-date and complete information on those who own (directly or indirectly) television channels, press and comparable online media operators be disclosed to the media regulator and be freely accessible by the general public. The public disclosure of this information allows better public scrutiny over the media sector.

Hence, pursuant to Law 78/2015, media operators are under the obligation to carry out a number of filings with the Portuguese Regulatory Authority for the Media (“ERC”) and to adopt certain practices aimed at disclosing information on their direct and indirect ownership to the general public.

Subjective scope

Law 78/2015 applies to media operators supervised by the ERC, namely: (i) press agencies; (ii) publishers of periodic publications, irrespective of the distribution channels; (iii) radio and television operators, regarding the channels they broadcast and the complementary content that they supply under their editorial responsibility; (iv) entities that have the powers to make the decisions regarding the selection and aggregation of contents which are broadcast to the public, through electronic communication networks, television channels or radio stations; and finally (v) entities and individuals that provide to the general public, through electronic communications networks, edited contents organised as a coherent whole. Law 78/2015 also applies to the shareholders of the media operators mentioned in (i) to (v) above.

Communications made by media operators

Law 78/2015 establishes a mandatory reporting system to the ERC by media operators, which have to disclose three types of information, namely: on their ownership; on their management; and on their funding.

In order to publicise their ownership and management, media operators have to disclose: (i) the identity of their shareholders, whether they are beneficial holders, ultimate holders or holders with a right to usufructuary enjoyment, as well as the percentage of the shareholding; (ii) the composition of the governing bodies; and (iii) the identification of those responsible for the editorial orientation and for the supervision of disseminated content.

In particular, each media operator must disclose: a) the identification and discrimination of the percentages of each shareholder; b) identification of the group of entities for which a shareholding corresponding to at least 5% of the media operator must be associated; and c) indication of the shareholdings held, directly or indirectly, by shareholders of other media operators.

Significant changes to the management and ownership of media operators must be disclosed to the ERC within 10 days following the change, namely: i) the purchase of, or a change in a shareholding representative of more than 5%, 10%, 30%, 40% or 50% of the media operator’s share capital or voting rights; (ii) the purchase of, or a change in a shareholding, representative of more than 5%, 10%, 20%, 30%, 40%, 50% of the media operator’s share capital by any member of a group which already holds a share corresponding to 5% of the share capital; (iii) the reduction, by an owner or holder, of a shareholding to an amount lower than the above mentioned percentages; (iv) change of the ownership of the media operator; (v) the change of the composition of the managing bodies or of the structure of those responsible for the orientation and supervision of the disseminated content; and (vi) any change by the owners and holders of media operators of shareholdings in legal persons that, directly or indirectly, own shares of other media operators.

Media operators who, under Portuguese Company Law, must keep their accounts organised, have to disclose to the ERC the payments made in favour of their management and identify those natural or legal persons that individually contributed to a minimum of 10% of the annual turnover of such operators. If this information is already held by any public administration or public service, such obligation is waved.

All the information provided to the ERC is, except under particular circumstances, publicly accessible on its website. It must also be made available within 10 days in a database, specially created for this purpose, on the website of the media operator it relates to. The database containing this information must be easily accessible and consulted. If the media operator does not have a website, the information has to be published in one of the first 10 pages of all the publications in the portfolio of the media operator.

Communications made by public registers

National company registers are under the obligation to disclose to the ERC the content of any registration related to media operators. Within 10 days of such disclosure, the media operator must provide to the ERC the following information on the registered acts: (i) identification of the shares and respective full characteristics, namely the rights specially included or excluded and their nominal value or percentage; (ii) identification of the holder and, in case of a co-holder, of the common representative; (iii) the identification of the applicant of the register; (iv) identification of the beneficiary of the act of register; and (v) description of the facts that were registered.

Qualified holdings

Special obligations apply (i) to those owning, directly or indirectly, individually or jointly, a share of 5% or more of the share capital or voting rights of media operators and (ii) to those which own a qualified shareholding of 5% or more and increase or reduce it. The content of the disclosure obligations of entities which own or hold qualified shareholdings is more exhaustive than those owning or holding other shareholdings. The criteria for calculating qualified shares are provided by Law 78/2015.

Owners of shareholdings in media operators are under the obligation to report to the ERC and to the respective media operator, within 10 business days, whenever their shareholding drops under 5% or if there is an increase or reduction of any qualified shareholding. Within two business days, media operators must publish the information received on their website, except if they are incorporated in Portugal under legal forms more commonly used by small and medium enterprises (SMEs).

Shareholders agreements which have the purpose of purchasing, keeping or strengthening qualified holdings in a media operator have to be disclosed to the ERC within 10 business days from the date they are entered into. Company resolutions adopted pursuant to non-disclosed shareholders agreements are ineffective.

Media operators are under the obligation to report annually, before 30 April, to the ERC information on their governing structure and governing practices, as well as other information established in the ERC regulations.

Finally, the ERC has supervisory powers and is in charge of maintaining compliance with the rules provided for in Law 78/2015. The fines applicable to media operators who fail to comply with the obligations set out in Law 78/2015 range from EUR 2.500 to EUR 250.000, varying in accordance with the type of offence and whether or not such offence was committed by natural or legal persons. Fines are reduced to a quarter when incurred by natural or legal persons that pursue media activities exclusively at a local level.

Conclusion

Law 78/2015 makes a clear attempt to promote transparency of media ownership in Portugal by imposing upon media operators and public registers ample disclosure obligations to the ERC.

The effective application of Law 78/2015 shall depend on diligent supervision of the media sector by ERC and on adequate scrutiny by media operators and by the general public.

Octávio Castelo Paulo has worked with the media industry for more than twenty five years. He advises media companies (on media regulatory, contracts and commercial issues), content providers (including on rights regarding sports content) as well as authors and artists on the management of their copyright and related rights matters. Mr Paulo has also worked with the telecommunications industry for more than twenty five years. He is one of the leading lawyers in Portugal in the practice of telecommunication law (regulatory - ex-ante and ex-post –, contracts and commercial matters). He advises Portuguese and international companies, network operators and service providers (fixed, nomadic or mobile), cable television and ISP’s. Technology law is another area that Mr Paulo advises on, particularly e-commerce issues, data protection and privacy, copyright protection in the information society, internet portals, software licensing and hardware purchase agreements. With extensive experience in corporate and M&A issues, Mr Paulo has coordinated privatisation operations of Portuguese government owned companies with listings in Lisbon, London and New York. He has full knowledge of company law and advises private equity houses and numerous listed and unlisted companies on corporate, joint ventures, corporate governance and corporate compliance issues. Mr Paulo is a lawyer registered with the Law Society of Portugal and with the Law Society of Angola.

Biographies

Luís Neto Galvão advises on commercial contract and regulatory aspects of the technology, media and telecommunications (TMT) industry. With regard to media law, Mr Galvão was involved in very diverse matters, from advising on contractual matters regarding the creation, production and distribution of television channels and the acquisition of contents to the regulation of televsion channels. Mr Galvão joined SRS Advogados in 2004 and became a Partner in 2013. He is a member of the European Commission Expert Group on Cloud Computing Contracts, an advisory body of the Commission on contractual and data protection matters in connection with cloud computing. He is also a consultant of the Council of Europe on privacy and data protection (Project Help in the 28). He has been recognised as an expert in his field by the Legal 500 Directory and has been noted as a leading individual in Chambers Europe.

PORTUGAL

Recent Legal Developments on Transparency of Media Ownership

Written by Octávio Castelo Paulo and Luís Neto Galvão,

SRS Advogados - Sociedade Rebelo de Sousa & Advogados Associados

In 2015, a new regulatory framework aimed at promoting transparency in the media sector came into force in Portugal. Law 78/2015, of 29 July, (“Law 78/2015”) regulates the ownership, management and financial means of media operators and amends the specific Portuguese laws on the press, television and radio.

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Luis Neto Galvão

Octávio Castelo Paulo