STJ decides on fraud practiced on internet business intermediation platform

The Third Panel of the Superior Court of Justice unanimously dismissed Special Appeal 1,880,334 / SP, maintaining the judgment that denied the claim for compensation for material damages made by an advertiser in the face of an intermediation platform due to fraud practiced by third. Reporting rapporteur Nancy Andrighi outlined the controversy for the purpose of “defining whether the intermediary website in electronic commerce can be held responsible for fraud perpetrated by a third party, which culminated in the sale of the product by the offerer without receiving the due consideration”.

In the factual situation, the applicant sent a used smartphone that it had advertised on the intermediation platform to the potential buyer without the actual payment having taken place. This is because the fraudster impersonated the company using a false e-mail address through which he forwarded a message to the applicant, informing the purchase of the product and the need to send it before receiving the amount charged.

In this context, the advertiser filed a lawsuit to repair material damage, which was deemed valid with the condemnation of the platform to pay an amount equal to the value of the smartphone. The court of origin, however, reformed the sentence, as it did not recognize whether it was the specific case of the company’s liability hypothesis. In the Special Appeal, among other arguments, an alleged failure to provide services was due to the fact that the fraud only took place because of the false e-mail.

In the vote of the rapporteur, Nancy Andrighi, the legal solution to the controversy was found by establishing premises regarding the relations maintained between the interested parties in the environment of an intermediary platform. In particular, the applicability of the Marco Civil da Internet, the nature of the legal relationship and possible liability regimes.

The intermediation platforms are subject to the rules of the Marco Civil da Internet falling into the category of application providers, responsible for making available on the network the information created or developed by the information providers. Such platforms provide potential sellers with services for transmitting offers of products or services, as well as means of payment when the contract is finalized on the platform, in addition to managing, in this case, the values ​​between buyer and seller.

In other words, “the person responsible for the e-commerce site, when offering product offers, making its technological infrastructure available and, above all, participating in the respective negotiations in the event of acceptance by the acquirer, assumes the position of service provider”. In this sense, with direct remuneration (commission in percentage of the sale value) or indirect remuneration (advertisements made on the website).

It was emphasized, however, that the relationships formed in the collaborative platforms have their own peculiarities, imposing on the judge the “task of defining the applicable civil liability regime” to the bonds formed in these environments. The relationship may or may not be for consumption, depending on the usual nature of the seller’s activity, professional or non-professional, applying, depending on the hypothesis, the Civil Code or the CDC.

In making the platform accountable to the advertiser, the vote set examples of accountability: (1) providing third parties with personal data about the advertiser; (2) failure to deliver e-mails; (3) allowing unauthorized access by third parties to e-mails or message content; (4) no transfer of the amount paid by the acquirer; (5) provision of deficient information on the correct use of the service or lack of warning regarding the risks associated with it.

In the specific case, considering these assumptions, it was concluded that there was an exclusive fact of a third party and that there was no failure in the security duty, both explainable by the nature of the fraud practiced. In other words, it was understood that the fraud “has no relation to the company’s behavior, as it is in fact a third party that broke the causal link between the damage and the supplier”, therefore, there is no failure in the provision of services. services. Finally, it was added that “each situation demands a specific analysis of the path taken by the fraudster, in order to define the fact as internal or external fortuitous”.

Wilson Sales Belchior