3. Notwithstanding the provisions of paragraph 2, a Party may require that, for a particular category of transactions, the firm meet certain standards of performance or
is certified by an accredited authority in accordance with its legal system.
4. The Parties shall encourage the use of interoperable electronic signatures.
Article 10.7. Online Consumer Protection
1. The Parties recognize the importance of adopting and maintaining transparent and effective measures to protect consumers from fraudulent and deceptive business practices when engaging in electronic commerce.
2. Each Party shall adopt or maintain consumer protection laws to prohibit fraudulent and deceptive business practices that cause harm or potential harm to consumers engaged in online commercial activities.
3. Each Party shall endeavor to adopt non-discriminatory practices in protecting users of electronic commerce from breaches of personal data protection occurring within its jurisdiction.
4. The Parties recognize the importance of cooperation between their respective consumer protection agencies or other competent bodies, in activities related to cross-border electronic commerce, in order to improve consumer welfare, including with a view to the progressive creation of online dispute resolution mechanisms for the protection of consumers and other aspects of consumer relations, to the extent that the legal, material and institutional feasibility exists for their development.
5. The Parties recognize the importance of adopting or maintaining measures to ensure that products marketed through electronic commerce are safe and do not pose a risk to the health and safety of consumers, including through adequate disclosure of precautionary measures for the safe use of these products by consumers.
6. Each Party shall adopt or maintain measures to ensure to customers, prior to the purchase of goods by electronic means, clear and timely information on:
(a) the conditions of delivery of the good or service, including the customs clearance process;
(b) the consequent possibility of delaying the delivery time;
(c) total prices and fees payable, including possible subsequent payments associated with the import;
(d) conditions of withdrawal, applicable legal warranty and conditions, and
(e) the supplier's contact details.
Article 10.8. Protection of Personal Data
1. The Parties recognize the benefits of ensuring the protection of the personal data of users of electronic commerce and the contribution this makes to enhancing trust and confidence of the consumer in e-commerce.
2. The Parties shall adopt or maintain laws and regulations for the protection of personal data of users participating in electronic commerce.
3. Each Party shall make efforts to ensure that its legal framework for the protection of personal data of users of electronic commerce is applied in a non-discriminatory manner.
4. Each Party shall publish information on the protection of personal data it provides to users of electronic commerce.
5. The Parties shall exchange information and experiences regarding their personal data protection legislation.
6. The Parties shall encourage the use of security mechanisms for users' personal data, and their anonymization, in case such data is provided to third parties, in accordance with the applicable legislation.
Article 10.9. Paperless Trade Administration
Each Party shall endeavor to:
(a) making trade administration documents available to the public in electronic form, and
(b) accept electronically submitted trade administration documents as the legal equivalent of the paper version of those documents.
Article 10.10. Principles on Access to and Use of the Internet for Electronic Commerce
Subject to applicable policies, laws and regulations, the Parties recognize the benefits of consumers in their territories having the ability to:
(a) access and use the services and applications of the consumer's choice available on the Internet, subject to reasonable administration of the network. For greater certainty, in the case of Brazil the term "reasonable" shall be interpreted as "transparent, non-discriminatory and proportional", in accordance with Law No. 12,965/2014;
(b) connect end-user devices of the consumer's choice to the Internet, provided that such devices do not harm the network, and
(c) to provide clear information on the network management practices of users by data transport providers, so that such users can make the consumption decision that best satisfies them.
Article 10.11. Cooperation on Cybersecurity Issues
The Parties recognize the importance of developing:
(a) the capabilities of their national entities responsible for cybersecurity and cyber security incident response;
(b) collaborative mechanisms to cooperate in identifying and mitigating malicious practices or the dissemination of malicious code affecting the Parties' electronic networks, users' personal data or protection against unauthorized access to private information or communications; and
(c) collaboration mechanisms to cooperate in the identification and mitigation of criminal practices such as pedophilia, drug trafficking and apology for other crimes.
Article 10.12. Cross-Border Transfer of Information by Electronic Means
1. The Parties recognize that each Party may have its own regulatory requirements on the transfer of information by electronic means.
2. Each Party shall permit the cross-border transfer of information by electronic means, where such activity is for the conduct of the business of a person of a Party.
3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to pursue a legitimate public policy objective, provided that the measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
Article 10.13. Location of Computer Facilities
1. The Parties recognize that each Party may have its own regulatory requirements relating to the use of computer facilities, including requirements that seek to ensure the security and confidentiality of communications.
2. A Party may not require a person of the other Party to use or locate computer facilities in the territory of that Party as a condition of doing business in that territory.
3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to pursue a legitimate public policy objective, provided that the measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
Article 10.14. Unsolicited Electronic Commercial Communications
1. Each Party shall adopt or maintain measures regarding unsolicited commercial electronic communications that:
(a) require providers of unsolicited commercial electronic communications to facilitate the ability of recipients to prevent the continued receipt of such messages; or
(b) require the consent of the recipients, as specified in accordance with the laws and regulations of each Party, to receive commercial electronic communications.
2. Each Party shall provide tools against providers of unsolicited commercial electronic communications that do not comply with the measures adopted or maintained pursuant to paragraph 1.
3. The Parties shall endeavor to cooperate in appropriate cases of mutual interest relating to the regulation of unsolicited commercial electronic messages.
Article 10.15. Cooperation
Recognizing the global nature of electronic commerce, the Parties shall endeavor to:
(a) working together to facilitate the use of e-commerce by MSMEs and the incorporation of women in e-commerce;
(b) share information and experiences on laws, regulations and programs in the sphere of electronic commerce, including those related to personal data protection, consumer protection, security in electronic communications and electronic signatures, intellectual property rights, and e-government;
(c) exchange information and share views on consumer access to products and services offered online between the Parties;
(d) actively participate in regional and multilateral fora to promote the development of electronic commerce, and
(e) Encourage the development by the private sector of additional methods of self-regulation to promote electronic commerce, including codes of conduct, model contracts, guidelines and compliance mechanisms for the protection of consumers' personal data.
Article 10.16. Relationship to other Chapters
In the event of any inconsistency between this Chapter and another chapter of this Agreement, the other chapter shall prevail to the extent of the inconsistency.
Chapter 11. TELECOMMUNICATIONS
Article 11.1. Definitions
For the purposes of this Chapter:
leased circuits means telecommunications facilities between two or more designated points that are intended for the dedicated use or availability to a particular customer or to other users chosen by that customer;
co-location means access to and use of physical space for the purpose of installing, maintaining or repairing equipment on premises owned or controlled and used by a major supplier for the provision of telecommunications services;
network element means a facility or equipment used in the provision of a telecommunications service, including the features, functions and capabilities that are provided through such facilities or equipment;
essential facilities means facilities of a public telecommunications network and service that:
(a) are supplied exclusively or predominantly by a single or limited number of suppliers, and
(b) it is not economically or technically feasible to replace them for the purpose of providing a service;
interconnection means the linking of providers supplying telecommunications services for the purpose of enabling users of one provider to communicate with users of another provider and to access services supplied by another provider;
non-discriminatory means treatment no less favorable than that accorded, in like circumstances, to any other user of similar telecommunications services;
reference interconnection offer means an interconnection offer offered by a major supplier and registered with or approved by the telecommunications regulatory body that is sufficiently detailed to enable telecommunications service providers who wish to accept such rates, terms and conditions to obtain interconnection without having to engage in negotiations with the supplier in question;
standard interconnection offer means an interconnection offer offered by a major supplier that is sufficiently detailed to enable public telecommunications service providers willing to accept such rates, terms and conditions to obtain interconnection without having to engage in negotiations with the supplier in question;
telecommunications regulatory body means the body or bodies of the other Party responsible for telecommunications regulation;
cost-oriented means cost-based, and may include reasonable profitability and involve different costing methodologies for different facilities or services;
major supplier means a supplier of telecommunications services that has the ability to significantly affect the conditions of participation (from a pricing and supply point of view) in a relevant market for telecommunications services, as a result of:
(a) the control of essential facilities, or
(b) utilization of its position in the market;
public telecommunications network means the telecommunications infrastructure used to provide telecommunications services;
international roaming means a commercial mobile service provided pursuant to a commercial agreement between telecommunications service providers that allows users to use their local cell phone or other device for voice, data or text messaging services while temporarily outside the territory in which the user's home network is located;
telecommunications service means any telecommunications service that a Party provides, explicitly or in fact, to be offered to the general public. Such services may include, but are not limited to, telephony, data transmission and intermediate services that typically incorporate customer-supplied information between two or more points without any end-to-end change in the form or content of such information;
Intermediate telecommunications services are those services provided by third parties, through facilities and networks, aimed at meeting the needs of those who hold an enabling title;
tariff means either tariff or price, according to the domestic legislation of each Party;
telecommunications means any transmission, emission or reception of signs, signals, writings, images, sounds and information of any nature, by physical line, radio-electricity, optical means or other electromagnetic systems; and
user means an end consumer or a subscriber of a public telecommunications service, including a service provider, except a supplier of public telecommunications services.
Article 11.2. Scope of Application
1. This Chapter applies to:
(a) measures related to access to and use of public networks and telecommunications services;
(b) measures related to the obligations of telecommunications service providers, and
(c) telecommunications otras medidas relacionadas con las redes públicas y los services.
2. This Chapter does not apply to measures relating to radio or television broadcasting and cable distribution of radio or television programming, except to ensure that enterprises providing such services have continued access to and use of public networks and telecommunications services in accordance with Article 11.3.
3. Nothing in this Chapter shall be construed to mean:
(a) oblige a Party to require any enterprise to establish, construct, acquire, lease, operate or supply telecommunications networks or services, when such networks or services are not offered to the general public;
(b) oblige a Party to require any enterprise, engaged exclusively in the broadcasting or cable distribution of radio or television programming, to make its cable distribution or broadcasting facilities available as a public telecommunications network, or
(c) to allow persons operating private networks to use them to provide telecommunications services to third parties.
Article 11.3. Access to and Use of Telecommunication Networks and Services
1. Each Party shall ensure that the enterprises of the other Party have access to, and may make use of, any telecommunications service offered in its territory or on a cross-border basis, on reasonable and non-discriminatory terms and conditions. This obligation shall be applied, including, inter alia, as specified in paragraphs 2 through 6.
2. Each Party shall ensure that such enterprises are permitted:
(a) purchase or lease and connect terminals or equipment that interface with public telecommunications networks;
(b) to provide services to individual or multiple users through owned or leased circuits;
(c) connect owned or leased circuits with public networks and telecommunication services or with circuits owned or leased by another company, and
(d) perform switching, routing, signaling, addressing, processing and conversion functions.
3. Each Party shall ensure that enterprises of the other Party may use public telecommunications networks and services to transmit information in its territory or across its borders, and to access information stored or contained in databases in a machine-readable form in the territory of either Party.
4. Notwithstanding paragraph 3, the other Party may take such measures as are necessary to ensure the security and confidentiality of messages, or to protect the privacy of users' personal data, provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
5. Each Party shall ensure that no conditions are imposed on access to and use of public telecommunications networks and services other than those necessary to:
(a) safeguarding the responsibilities of providers of public telecommunications networks and services, in particular their ability to make their networks or services available to the general public; or
(b) protect the technical integrity of public networks or telecommunications services.
6. Provided that the criteria set forth in paragraph 5 are met, the conditions for access to and use of public telecommunications networks and services may include:
(a) requirements to use specific technical interfaces, including interface protocols, for interconnection with such networks and services;
(b) requirements, when necessary, for the interoperability of such networks and services;
(c) the homologation or approval of terminal equipment or other equipment interfacing with the network and technical requirements related to the connection of such equipment to such networks, and
(d) notification, registration and granting of authorizations or licenses, as applicable.
Article 11.4. Use of Telecommunication Networks In Emergency Situations
1. Each Party shall endeavor to adopt the necessary measures to ensure that telecommunications companies transmit, at no cost to users, the alert messages defined by its competent authority in emergency situations.
2. Each Party shall encourage telecommunications service providers to protect their networks against serious failures caused by emergency situations, in order to ensure public access to telecommunications services in such situations.
3. The Parties shall endeavor to manage, in a joint and coordinated manner, actions in the field of telecommunications in emergency situations and the planning of resilient networks to mitigate the impact of natural disasters.
4. Each Party shall adopt the necessary measures for mobile telephone service providers to grant the possibility of making calls to the free emergency numbers of that Party to international roaming users of the other Party, in accordance with its national coverage.
5. For purposes of this Article, emergency situations shall be determined by the competent authority of each Party.
Article 11.5. Interconnection between Suppliers
General Terms and Conditions of Interconnection
1. Each Party shall ensure that suppliers of telecommunications services in its territory provide interconnection to suppliers of telecommunications services of the other Party:
(a) at any technically feasible point in your network;
(b) under non-discriminatory terms, conditions (including technical standards and specifications) and rates;
(c) of a quality no less favorable than that provided by such telecommunications service suppliers to their own like services, to like services of non-affiliated service suppliers, or to like services of their subsidiaries or other affiliates;
(d) in a timely manner, on terms, conditions (including technical standards and specifications) and cost-oriented tariffs that are transparent, reasonable, taking into account economic feasibility, and sufficiently unbundled so that providers need not pay for network components or facilities that they do not require for the service to be provided. For Brazil, cost orientation is one of the options empowered by its telecommunications regulations, without prejudice to other criteria, and
(e) upon request, and if accepted, at points in addition to the network termination points offered to most users, subject to charges reflecting the cost of constructing the necessary additional facilities.
2. In carrying out paragraph 1, each Party shall ensure that suppliers of telecommunications services in its territory take reasonable steps to protect the confidentiality of commercially sensitive information of, or relating to, suppliers and users of telecommunications services, and only use such information to supply those services.
Interconnection Options
3. Each Party shall ensure that telecommunications service suppliers of the other Party may interconnect their facilities and equipment with those of telecommunications service suppliers in its territory, in accordance with at least one of the following options:
(a) a reference interconnection offer containing rates, terms and conditions that telecommunications service providers offer each other;
(b) the terms and conditions of an existing interconnection agreement, or
(c) the negotiation of a new interconnection agreement.
Public Availability of Interconnection Negotiation Procedures
4. Each Party shall make publicly available the procedures applicable to interconnection negotiations with suppliers of telecommunications services in its territory.
Public Availability of Rates, Terms and Conditions Necessary for Interconnection
5. Each Party shall provide the means for telecommunications service suppliers of the other Party to obtain the necessary rates, terms and conditions for interconnection offered by a telecommunications service supplier, in accordance with each Party's legal system. Such means include, at a minimum, ensuring:
(a) the public availability of rates, terms and conditions for interconnection with a telecommunications service provider established by the telecommunications regulatory body or other competent body, or
(b) the public availability of the reference interconnection offer.
Article 11.6: Shared Internet Interconnection Charges
The Parties recognize that a provider seeking international Internet interconnection should be able to negotiate with the other Party's providers on a commercial basis. Such negotiations may include negotiations on compensation for the establishment, operation and maintenance of the respective providers' facilities.
Article 11.7. Portability
Each Party shall ensure that telecommunications service suppliers in its territory provide portability in those services provided for in its domestic law, in a timely manner, and on reasonable and non-discriminatory terms and conditions.
Article 11.8. Damaged, Stolen or Lost Mobile Terminal Equipment
1. Each Party shall establish procedures that allow telecommunications service providers established in its territory to exchange and block in their networks the IMEI (International Mobile Equipment Identity) codes or other similar codes of mobile terminal equipment reported in the territory of another Party as stolen, misplaced or lost, or to implement mechanisms that inhibit or prevent the use of mobile terminal equipment with cloned or adulterated IMEIs.
2. The procedures referred to in paragraph 1 shall include the use of such databases as the Parties may agree for that purpose.
Article 11.9. Internet Traffic
The Parties shall endeavor to:
(a) to promote the interconnection within the territory of each Party of all Internet Service Providers (ISPs), through new Internet Exchange Points (Internet Exchange Points or "ITPs"), as well as to promote interconnection between the ITPs of the Parties;
(b) adopt or maintain measures to ensure that public works projects include mechanisms to facilitate the deployment of fiber optic or other telecommunications networks. For purposes of this subparagraph, the term "public works" shall be understood in accordance with the legislation of each Party;
(c) encouraging the deployment of telecommunications networks that connect users to the main centers of Internet content generation worldwide, and
(d) adopt policies that encourage the installation of Internet content generation centers and distribution networks in their respective territories.