Unauthorized 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 into the sale of pirated products in the market, as the platform offers storage and fast delivery services to workers who do not have the agency authorization to sell the items.
This is the understanding of the Specialized Federal Prosecutor (PFE) – an agency of the Federal Attorney General (AGU) that provides legal advice to Anatel. From now on, Mercado Livre can suffer fines and administrative sanctions. In addition, Anatel may require an inspection of the company’s warehouses. According to the PFE, the Free Market “actively and decisively participates in the marketing of products”.
The ruling stems from the agency’s review in a 2015 notice 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 the marketplaces, it was however difficult for the IFC to implement the Action Plan against Piracy (PACP), created in 2018. The agency therefore requested a review of the Politics.
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Image: Reproduction / Canaltech / André Magalhães
The new document directly mentions the Free Market, but the PFE stresses that the rule can be applied to other companies. According to the Brazilian Association of Electronic Commerce (Abcomm), marketplaces have developed a lot during the pandemic: they now hold 78% of e-commerce for end consumers.
Last week, company representatives met with Procon-SP to discuss the sale of illicit products and pledged to work together to prevent the sale of illegal items in the marketplace. “The administrative responsibility of the Free Market stems from its effective and essential participation in the vertical product supply chain”, informs PFE.
Other court decisions
The new opinion is based on legal rulings from courts in states such as Minas Gerais (MG) and Rio Grande do Sul (RS). In both cases, the Free Market was convicted in cases of product sales fraud 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 regulators”. “From the point of view of the regulatory framework (…) it constitutes an administrative offense, subjecting the infringer (manufacturer, supplier, trader or consumer) to the appropriate sanctions”, he specifies.
A decision of the National Secretariat of Consumption (Senacon), an agency of the Ministry of Justice responsible for the application of the Consumer Defense Code (CDC), was also examined. 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 the PFE, the
Marketplaces play an increasingly vital role in the consumer chain and must therefore be held accountable for the sale of pirated products.
What does the free market say
Image: Disclosure / Free Market
Researched by the Canaltech report, Mercado Livre “reports fighting against abuse of its platform, by relying on proactive actions to identify and exclude sellers who disagree with its General Conditions of Use and with the legislation in force. 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 authorities. The platform also emphasizes that it acts quickly on complaints, which can be formulated by any user, thanks to the “report” button present in all announcements.
Another point raised by the market is that “although it is not responsible for content generated by third parties, as provided by the Marco Civil da Internet and the consolidated case law of the Superior Court of Justice (STJ) for platforms of ‘intermediation, 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 is already working in partnership with other organizations, such as the public prosecutor and Ancine,” he concludes.
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