Unapproved cell phones sold on the Mercado Livre may result in fines for the company. This is because the National Telecommunications Agency (Anatel) determined the investigation of the sale of pirated products in the marketplace, as the platform offers storage and fast delivery services to workers who do not have authorization from the agency to sell the items.
This is the understanding of the Specialized Federal Attorney (PFE) – an agency of the Federal Attorney General (AGU) that provides legal advice to Anatel. Now, Mercado Livre may suffer administrative fines and penalties. In addition, Anatel may require an inspection of the company’s warehouses. According to the PFE, the Free Market “participates actively and decisively in the commercialization of products”.
The decision comes from the review that the agency made in a 2015 opinion in response to a request from the Superintendency of Oversight (SFI). Previously, the document assessed that the advertiser was responsible for selling and advertising the pirated product. With the exemption from liability of marketplaces, however, it was difficult for the SFI to implement the Action Plan to Combat Piracy (PACP), created in 2018. Therefore, the agency asked for a review of the policy.
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Image: Reproduction/Canaltech/André Magalhães
The new document directly mentions the Free Market, but the PFE emphasizes that the rule can be applied to other companies. According to the Brazilian Electronic Commerce Association (Abcomm), marketplaces grew a lot during the pandemic: today, they have a 78% share in e-commerce for end consumers.
Last week, company representatives met with Procon-SP to discuss the sale of illicit products and made a commitment to collaborate to prevent the sale of illegal items on the marketplace. “The administrative responsibility of the Free Market stems from its effective and essential participation in the vertical supply chain of products”, informs PFE.
Other legal decisions
The new opinion is based on legal decisions of the Courts of Justice in states such as Minas Gerais (MG) and Rio Grande do Sul (RS). In both, the Free Market was condemned in cases of fraud in the sale of products and piracy. For institutions, the platform is part of the consumption chain and participates as an agent.
According to federal prosecutor Victor Epitácio Teixeira, the sale of illegal products, whether counterfeit, uncertified or prohibited for sale, “is currently a major concern for regulatory agencies.” “From the perspective of the regulatory framework (…) it constitutes an administrative infraction, subjecting the infringer (manufacturer, supplier, trader or consumer) to the appropriate sanctions”, he says.
A decision by the National Consumer Secretariat (Senacon), an agency of the Ministry of Justice responsible for applying the Consumer Defense Code (CDC), was also considered. Before it, sales sites claimed that advertisements, even those promoting pirated products, were protected by the right to “freedom of expression” of internet content providers, provided for in article 19 of the Marco Civil da Internet.
In 2019, however, Senacon rejected this justification. According to the secretariat, “you cannot confuse an internet content provider with marketplaces designed to buy and sell goods in virtual environments.” For PFE, the
Marketplaces play an increasingly vital role in the consumption chain and, therefore, must be held responsible for the sale of pirated products.
What does the Free Market say
Image: Disclosure/Free Market
Sought by Canaltech’s report, Mercado Livre “reports that it combats the misuse of its platform, based on proactive actions to identify and exclude sellers in disagreement with its Terms of Conditions and Use and with current legislation. According to the company, as soon as an irregular advertisement is identified, in addition to excluding and notifying the seller, the company denounces it to the competent bodies.” The platform also emphasizes that it acts quickly on complaints, which can be made by any user, through the ‘report’ button present in all ads.
Another point raised by the marketplace is that “despite not being responsible for the content generated by third parties, as provided for in the Marco Civil da Internet and the consolidated jurisprudence of the Superior Court of Justice (STJ) for intermediation platforms, it invests and acts in the fight against piracy , counterfeiting and fraud, in order to ensure compliance with its policies, assist the authorities in the investigation of irregularities and offer the best user experience”. “In addition to the dialogue it maintains with the Ministry of Justice and Public Security, the Free Market already works in partnership with other bodies, such as the Public Ministry and Ancine”, he concludes.
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