Responsibility of digital platforms in e-commerce – 09/10/2022 – Notícia

Rodrigo Alves Andrade
lawyer

Modern society is increasingly virtual. As a result, the e-commerce segment is one of the fastest growing. In 2021, an increase in e-commerce revenue in Brazil of 48.41% was recorded. In November of that year, online sales reached a record level – almost 20% of retail sales in the country. Brazil was the second country with the highest growth rate of electronic sales, surpassed only by India in 2021. Legal problems arising from e-commerce operations were not long in coming. Given this scenario, one of the most interesting topics is defining the responsibility of platforms, that is, electronic portals, for purchase and sale transactions that take place between their users. Without exaggeration, it is a topic that requires legal processing, and precise information from sites or platforms, so that the consumer knows when the company responsible for the site/platform will also be responsible for the work. On the one hand, there are those who simply argue that it is a consumer relationship and that, therefore, the companies responsible for the sites would always be responsible for the defects or defects of the products. On the other hand, there are those who believe that liability must be assessed based on the analysis of the effective participation or mediation of the virtual sites in the signed business. It seems that the reason for this is the firm orientation of the STJ, according to which the responsibility of the provider/site will depend on the degree of involvement in the legal relationship.

After considering the matter, it is possible to identify at least four different situations in which a legal relationship can develop. The first is the one where the portal only publishes ads from third parties. It’s like an ad in a newspaper. This is the case when someone buys a product from an advertisement on a news portal, such as UOL or Globo.com. In this case, there is an advertiser situation, where the company responsible for the site acts as a mere research source and there is no way to attribute responsibility for the transaction. The other extreme is the situation where the supplier sells his products electronically. It is obvious that in such a case the supplier is responsible for the product or service provided, and the Internet is only a means of carrying out the operation. The case is that Magazin Luiza sells its products through its digital platform, in which its responsibility is unquestionable.

The third hypothesis is that the platform provides and can act as an intermediary for the signed deal, on its website, but, at the choice of the user, the transaction is carried out directly between the supplier and the consumer, without the intervention of the platform. Here, the platforms are equivalent to the type of classifieds and the responsibility for the work cannot be extended to them, since they are strange for any fraud practiced by the user. This is what remained decided, regarding the OLX platform, in an operation practiced directly between its users (STJ, 3rd Panel, REsp 1.836.349/SP, Rel. Min. Marco Aurélio Bellize, unanimously, j. 21.06.22 ), or as far as the free market is concerned, in an operation in which the parties did not take advantage of the mediation mechanisms provided by the platform, thus removing the causal connection and the failure of the security duty (STJ, 3rd Chamber, rapporteur Min. Nancy Andrighi, unanimously , j. 09.03 .21). The final situation is that the platform or website provides its technological infrastructure for the conclusion and execution of the deal, in a triangular relationship, in which the acquirer and the supplier of the product or service are still involved. In these transactions, it does not matter that there is no direct payment by the acceptor of the platform, or even that the platform does not receive a commission on the transaction (such receiving a commission is a common practice). Even if compensation is given exclusively to advertisements, if an intermedia platform and its technological structure are used to carry out the operation, the platform integrates the consumption chain and responds jointly, especially in electronic commerce, where the consumer does not have direct contact with suppliers (STJ, 2nd Chamber, report by Min. Herman Benjamin, unanimously, DJe 11.1019)

In short, the liability or non-liability of a digital platform/venue for an e-commerce operation will depend on the level of involvement it represents in the legal relationship it enters into.

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