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13/05/2019 - Liability of Online Marketplace Platforms in Brazil
The business model of using an online marketplace has increased in Brazil, becoming the main sales channel for Brazilian e-commerce in recent years
Using such platform, businesses offering products for sale can reach a greater number of consumers. In turn, consumers evaluate products, prices and conditions and make purchases and payments more conveniently in a single virtual environment. In return, the online marketplace charges for the transactions it brokered, often in using a commission.
The issue has already been widely discussed from the point of view of consumer law. Based on the theory and principles found in the Consumer Protection Code, it was easy to conclude that, even if the online marketplace does not act directly, it still has objective liability. This makes the supplier liable for the damages suffered by the consumer, regardless of whether it acted with bad faith or guilt.
Since liability is an inherent risk to business, any supplier who is receiving profits from a particular activity should be liable for its wrongdoings.
And what is the position where a violation does not involve consumers? What if the product traded under the intermediary of an online marketplace platform infringes third party intellectual property rights? Can the platform be held liable for such infringement?
Recent court decisions have found that online marketplaces act as providers of third party content, thereby benefiting from the terms of article 19, paragraph 1 of Law no. 12.965 / 14. This law provides that the content provider may only be held responsible for content generated by a third party if, after a court order, they fail to take appropriate action.
Thus, unlike what happens when there is a consumer relationship, the online marketplace as a content provider cannot be held objectively liable for violations of third party rights. On the other hand, the online marketplace can be held liable subjectively if it is proven that it had prior notice of the violation and remained inert, not removing content violating the rights of others.
Content providers are not obliged to previously monitor and/or control the information placed in their domain, since such obligation would constitute violation of freedom of communication and censorship. This means that such Internet provider is only responsible in cases where, being aware of the violation, it remains inert, without taking any action to cease such infringement.