Natália Fioravanti Salvadori
Lawyer at Marcos Martins Advogados
In a recent decision[1], published on April 8, 2021, the Third Panel of the Superior Court of Justice held that an e-commerce website would not be liable for fraud committed by the buyer of a used cell phone put up for sale by the plaintiff.
The lawsuit was upheld at first level, and the company was ordered to compensate the plaintiff in the sum of two thousand reais. However, the decision was overturned by the São Paulo State Court of Justice, which ruled that the e-commerce site was not liable, since the fraud was perpetrated outside the platform.
The case reached the STJ and the justices unanimously decided to uphold the judgment handed down by the São Paulo State Court of Justice, rejecting the request to condemn the online sales platform to pay compensation for moral damages to the user, due to the lack of responsibility for the fraud that occurred.
The ruling, reported by Justice Nancy Andrighi, stressed that the Brazilian Civil Rights Framework for the Internet provides that intermediary websites, such as the e-commerce platform, fall into the category of providers, which are responsible for making information created or developed by the owners of the information available on the web, and are subject to the regulations set out in Law 12.965/14.
He also pointed out that the relationship between the platform and the advertiser is atypical, and therefore it is necessary to analyze whether the advertiser habitually sells products or not. In the first case, given the commercial nature of the advertiser’s activity, the relationship with the e-commerce site will be governed by the Civil Code. In the other case, where the advertiser is not a professional trader, the Consumer Protection Code will apply for the purposes of analyzing the civil liability of the e-commerce site.
In the case in question, even though the CDC rules apply, the STJ held that as the fraud was perpetrated by a third party, who did not use the platform to carry out the illicit act, there was a break in the link between the conduct and the damage suffered, so that the company’s liability was excluded.
This decision establishes an important understanding to the benefit of companies that operate as a Marketplace (e-commerce platform), whose sales have grown progressively during the pandemic, and were often held responsible for acts committed by third-party fraudsters.
Marcos Martins Advogados is attentive to new developments in case law in order to provide adequate and effective advice to our clients.
[1] BRAZIL. Superior Court of Justice. Special Appeal No. 880344. Official Gazette. Brasília, April 8, 2021.
