TJDFT maintains rejection of the request for moral damages for deactivation of an account
In that judicial decision, the content of the Terms of Service stood out, among other aspects
The Court of Justice of the Federal District and Territories upheld the sentence of dismissal, denying indemnity for pain and suffering, requested by an individual, who had his account on the Whatsapp application deactivated. It was understood, on that occasion, that “if the application is used in non-compliance with the usage guidelines, there is no need to speak about an illegal act in the application of the penalty of which the user was already aware, that is, the deactivation of his account ”.
The controversy, in summary, refers to the interruption of the use of an instant messaging application account, used by individuals to perform commercial activities associated with tattoo services. The reasons given by the company consisted of a violation of the application’s Terms of Service and the high volume of complaints received from other users regarding the disabled account.
At the origin, the claim was a comminatory action combined with indemnity filed by an individual against the company, claiming the reestablishment of access to the Whatsapp application, together with indemnity for moral damages in the amount of R $ 10,000.00. The ruling was grounded on the lack of illegality in the conduct of the company that interrupted the plaintiff’s access to the application, after it heard about the violation of the Terms of Service.
In that judicial decision, the content of the Terms of Service stood out, among other aspects. This is because the application does not allow its use for commercial purposes, under penalty of interruption of services. In addition, it was reported that since the plaintiff’s intention was to use the application for other purposes, he should have opted for the “business” segment, which, even so, prohibits the provision of services aimed at the adult public.
In the civil appeal, the plaintiff argued that the deactivation of his account would be unjustified, due to an attitude implemented unilaterally, without having been given prior defense or indicated the concrete reasons that justified the measure. Furthermore, he maintained that “any infraction of the usage guidelines, considering the passage of time, would already be validated”. In the case of counter-reasons, the company presented argumentative reasoning based on passive illegitimacy and the fact that the account of the plaintiff would already be active, consequently causing the extinction of the feat without resolution of merit due to the supervening loss of the object.
The 7th Civil Class of the TJ-DF rejected the preliminary passive illegitimacy presented in the counterarguments, recognized the prejudice of the intention to reestablish the service due to the fact that the account is active and dismissed the appeal. It was understood, therefore, that there was no “the occurrence of any violation of the right of the personality”, nor an illegal act.
The hypothesis of invalidation of the irregular use of the application was also ruled out, especially since “the communications made through the application are encrypted from end to end, that is, its content is unknown by the service management company itself, which can take time to identify any improper user behavior ”.
Wilson Sales Belchior