Carlos Alexandre Basílio
Lawyer at Marcos Martins Advogados
It is increasingly unquestionable that with all the ease provided by digital platforms, social networks contribute significantly to the exposure of brands, whether positively or negatively. With consumers increasingly connected, online reviews have taken the place of the famous “word of mouth”. In the so-called “online review” era, consumers end up being opinion formers on the internet through their reports, so that their posts about companies are taken into account by thousands of other consumers (since by analyzing the reviews left on the internet, other consumers will base their purchasing decision).
For this reason, the reports made available on the world wide web are of great importance, so that untrue allegations, offenses, illusions and false accusations are capable of causing irreversible damage to the tarnished company. According to Professor Sandra Salgado, a specialist in digital media,
Public opinion is spread ever more easily through blogs, social networking sites and other forms of connectivity, increasing the complexity of the context and external factors that influence consumer habits.¹
The protection of image and honor is provided for in the form of fundamental personality rights, categorically set out in sections V and X of art. 5 of the Federal Constitution, which states that “(…)V – the right of reply, proportional to the offense, is assured, in addition to compensation for material, moral or image damage;” and that “X – the intimacy, private life, honor and image of persons are inviolable, ensuring the right to compensation for material or moral damage resulting from their violation”.
In this way, according to Alexandre de Moraes, now a STF minister and then a constitutionalist professor
the constitutional protection enshrined in item X of art. 5 refers to both natural and legal persons, including the necessary protection of one’s image in the face of the mass media (television, radio, newspapers, magazines, etc.).²
In line with this interpretation of the text of the Magna Carta, the infra-constitutional legislator, through articles 17 and 20 of the Civil Code, expressly provided for the applicability to legal entities by stating that “A person’s name may not be used by others in publications or representations that expose them to public contempt, even when there is no defamatory intent.” It also states that “the exposure or use of a person’s image may be prohibited, at their request and without prejudice to any compensation that may be due, if it affects their honor, good reputation or respectability, or if it is intended for commercial purposes.”
Article 52 goes on to state that “The protection of personality rights shall apply to legal persons, where applicable.” Nevertheless, it is understood that making and maintaining offensive posts on the World Wide Web also violates the Consumer Protection Code (Federal Law 8078/90), since consumers of the offending company may be misled into believing that the “information” provided by the offender is true.
By way of example, let’s mention the high-profile cases of the Base School (where staff were accused of sexually abusing pupils) and the Mc Donald’s fast-food burger, which was made from worms. In the end, it was discovered that both were untrue, but they brought enormous negative repercussions for the companies.
It is crucial to bear in mind that by spreading offenses and untruths via the internet, users make the situation of the offended company much worse, since the internet represents a global and borderless field of communication, reaching millions of people in a very short space of time.
For this reason, even though Brazilians are constitutionally guaranteed the right to criticize and demonstrate, the practice of acts that lead to the tarnishing of companies’ commercial names must be curbed by the Judiciary.
The São Paulo Court of Justice, when dealing with this issue, has ruled that compensation must be paid to the offended party when offensive content is posted on the internet. Below are some excerpts from judgments debating the issue:
The right to criticize is not absolute and the existing evidence is effective for the verisimilitude of the allegation of abuse, from which also derives the risk of damage of difficult reparation due to the possibility of loss of income and destruction of the image of the aggravated party;³
The expressions used by the defendant when referring to the plaintiff do not reflect well on his conduct; on the contrary, they detract from his image. Weighing up the constitutional right to freedom of expression against other rights. The direct and indirect insults to the appellant’s attributes caused damage to her honor. Article 187 of the Civil Code applies, given the abuse of rights by the defendant, which justifies compensation for moral damage.⁴
The use of computerized means as an option to report what is perceived to be an irregularity or professional incapacity, instead of resorting to the consumer protection system or even the judicial sphere, represents an attempt to propagate any damage or inadequacy in the exercise and fulfillment of professional contracts based on a personal and unilateral interpretation. This attitude generates more far-reaching consequences, making it difficult to prevent, so the propagator assumes the risk of producing results. Once the defects in the object or provision of the service have been made clear, the complaint should list them, detail them and report non-compliance with the time limit clause in the contract. Anything more is excessive and affects the honorability of individuals or the company, and therefore deserves compensation to the victim for offending their personal or professional honorability.⁵
It should be noted that the São Paulo Court of Justice recognizes the right to compensation when consumers overstep their right to criticize, which damages the name and commercial reputation of the offended company.
Notwithstanding the need to protect a company’s name and business reputation, it is also essential to protect its online reputation, which is closely linked to its business name. A company’s online information can have a direct impact on a consumer’s choice, since, according to studies, 90% of consumers search the internet before making a purchase. So what people find on the internet about a particular brand will have a direct impact on the company’s earnings and profitability.
Today’s consumer, who is always connected to the internet (all they need is a smartphone), uses opinions, comments on websites, videos, social networks and apps to make comparisons, establish parameters and choose between different competitors.
For this reason, judicial intervention is legitimate in order to stop harmful conduct when companies are offended on the internet, the negative repercussions of which may be irreversible, thus protecting the name and commercial reputation of the offended company. Nevertheless, the offended company will always have the right to reparation through compensation for the damage that has occurred, given that the same protection afforded to natural persons should also be applied to legal entities.
¹NEVES, Andressa. Relationship with the consumer: impacts of social networks on consumer behavior. Canaltech, 2016. Available at: < https://canaltech.com.br/redes-sociais/redes-sociais-os-novos-comportamentos-de-compra-e-consumo-70329/>. Accessed on: May 10, 2018.
²In Constitutional Law, 11th Edition, São Paulo; Atlas, 2012, p. 79
³TJSP; Interlocutory Appeal 2006088-35.2014.8.26.0000; Rapporteur (a): Maia da Cunha; Judging Body: 4th Chamber of Private Law; Matão Courthouse – 1st Court.
⁴0009095-16.2014.8.26.0438 – Appeal / Compensation for moral damage – Rapporteur: James Siano District: Penápolis – Judging body: 5th Chamber of Private Law – Date of judgment: 06/08/2016.
⁵TJSP; Appeal 9171867-69.2004.8.26.0000; Rapporteur: Caetano Lagrasta; Judging Body: 8th Chamber of Private Law; Bauru Court – 2nd CIVIL COURT
