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Deactivation of profile in social networks and moral damages

02/04/2021

Digital integrates the daily lives of people who, among other transformations, started to relate and consume through social networks, communities organized based on contractual conditions informed to users during the creation of their account. It is the growing economic perception of this phenomenon that drives questions about the link between profile deactivation and moral damage.

 

Evidence of this is the social network “Instagram”, which has already surpassed the mark of 1 billion active users every month and 500 million daily accesses, which take, on average, 53 minutes, being considered, since 2019, the social network with greater engagement. Thus, it represents a privileged space for companies in all sectors, which is confirmed by the information that 83 of the users find new products and brands on this social network and 1/3 of the most viewed stories are from companies.

 

Before analyzing the relationship that gives title to this text, it is essential to distinguish the profiles that are used for entertainment and leisure purposes and those that do so with the aim of expanding its scope focused on promoting products and services in consideration of an economic nature.

 

In the first case, as a rule, the indemnity claim motivated by the deactivation of the profile is denied by the Judiciary, since these demands have a high degree of difficulty in demonstrating the alleged damage, which is generally framed as violations of the social network’s contractual conditions, or mere discomfort.

 

On the other hand, in a social network, in which the user has an economic interest and purpose, the deactivation can, in theory, generate indemnities, if the arbitrariness in the conduct of the social network is fully proven. In state courts, for example, there are situations in which the social network had to indemnify digital influencers for exclusion or suspension in the accounts of these users. The circumstances of the cases refer to the justification for the violation of the terms of use, however, there was a lack of opportunity for these influencers to present defense arguments.

 

In another case, this time judged by the STJ, it was decided to keep the astreintes in an obligation to impose the social network for non-compliance with a court order consistent with the reactivation of a user’s account, excluded by complaints of copyright infringement made by third parties, without having been given the prior defense of the profile holder who works in the clothing / uniforms trade over the internet.

 

Therefore, the analysis of the factual circumstances of each situation is a necessary condition for assessing the conformity of the deactivation of a profile on a social network, emphasizing, otherwise, that photos, phrases, statements or comments that violate the rights of others or the terms use of the social network can also lead to punishment.

 

José Neto Castro – Graduated from the Catholic University of Pernambuco, with over 10 years of experience. Post-graduate degree in Consumer Law from Uninassau in partnership with ESA and OAB / PE. Member of the internal team of Banco Bradesco’s Legal Department for 12 years, I have worked in the civil and labor areas.

 

Wilson Sales Belchior

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