By Tayrê Balzan, Lucas Euzébio and Layon Lopes*
Over the last few years, the market for providing services and selling products has undergone profound changes in the way it advertises and monetizes its offerings. One of the milestones in this process is marketplaces. On the rise, this business model consists of digital platforms for intermediating services and/or products, which most of the time have a specific market niche capable of attracting customers who are looking for a certain demand – which can make offering assets on the platform very attractive.
The difference between marketplaces and traditional commerce is that these platforms are not the suppliers of the products or services offered there. When we think of a consumer relationship chain, marketplaces are halfway between the service/product provider and the consumer. And, precisely because they act as intermediaries between the two ends of the chain, they receive a certain amount of remuneration (which can be in the form of a commission for each successful transaction, a fixed amount per advertisement on the platform, among other methods).
As with all consumer relationships, marketplaces are not exempt from the possibility that the delivery of the asset to the customer may contain defects or flaws. In situations like these, it is not uncommon for consumers to turn to the intermediation platform to fix the errors found – after all, in the consumer’s view, the platform was the means by which the deal was carried out, so it would be up to it to repair any defects arising from the operation.
However, because they are not the suppliers of the object transacted (be it a product or service), marketplaces generally don’t even have the capacity to correct the defects pointed out by the customer. In practice, the intermediary platforms have no means of ensuring the assertiveness of the result, since know-how or raw materials are assets that, in this business model, are under the control of the supplier – a figure who, in the event of consumer complaints, should be responsible for correcting the problems reported.
However, everyday commercial relations show that this is not always the case. Often helpless, consumers turn to the courts to seek satisfaction for a right they claim has not been fulfilled. Obtusely, on the other hand, the courts have taken the view that, as they are part of the consumer chain, marketplaces should be held objectively liable for defects arising from the transaction – following the logic that, since the platforms make a profit from the transaction, they should therefore assume the risks arising from it – equating the platforms’ liability with that of the suppliers themselves.
With regard to this understanding, it is essential to point out that this interpretation is mistaken and incomplete, as it only examines the issue from the perspective of consumer legislation. The Consumer Protection Code was enacted in 1990, a year in which the possibility of new technology-based business models such as marketplaces was not even speculated upon. A reality, therefore, far removed from today.
Marco Civil Law of the Internet in Brazil (Law 12.965/2014), the legislation that regulates the use of the internet in Brazil, provides, in its article 3, item VI, for the “accountability of agents according to their activities” and, in item VIII, the “freedom of business models promoted on the internet”. These normative commands reinforce the understanding that the cyber environment must be guided by freedom in relations and by the accountability of agents in proportion to the activity carried out.
Therefore, if the judiciary were willing to judge cases of this nature according to the guidelines established by the legislation governing the matter, it should limit the liability of marketplaces to the intermediation service only, instead of extending it to the end result of the provision of the service or the delivery of the product – a burden that should fall only on the real party responsible for the result of such an operation: the supplier.
In this case, we would highlight REsp n. 1.880.344/SP, which ruled as follows:
The person responsible for the e-commerce site, by advertising products, making their technological infrastructure available and, above all, participating in the respective negotiations in the event of acceptance by the buyer, assumes the position of service provider.
The relationship between the offeror and the intermediary will be one of consumption or not, depending on the nature of the activity carried out by the advertiser of the product or service. If the seller is a professional who sells products on a regular basis, they will not fall within the concept of supplier as set out in article 3 of the CDC, so the civil liability of the website will be governed by the rules set out in the Civil Code. On the other hand, if the seller is not a professional and does not sell products or offer services on a regular basis, and there is a failure to provide services on the part of the intermediary, the rules set out in the CDC apply. Since the relationship is a consumer one, for the liability of the service provider to emerge, it is sufficient to prove the damage; the failure to provide the services and the causal link between the damage and the defect or defect in the service.
Faced with this scenario, marketplaces are left with a few alternatives in order to minimize risks and damage to the development of their business. Firstly, it is essential to establish a solid contractual network with suppliers and consumers. With the former, the contracts governing the commercial partnership must contain assertive provisions to the effect that it is the supplier’s responsibility to repair any damage to third parties, if it arises from poor service or delivery of a defective product; with the latter, the platform’s terms of use – or any other instrument that governs the relationship between the parties – must make it explicit that the marketplace will not assume any responsibility that falls to the supplier, and the consumer must demonstrate their agreement with these provisions, in order to strengthen the platform’s defense in the event of a lawsuit.
Finally, if convicted, marketplaces can make use of the right of recourse. This is a mechanism by which they can seek, in court, to have the real cause of the damage – the supplier – compensate the platform for the damage suffered. For this to be possible, however, it is also essential that there is a provision in the contract signed between the parties authorizing the filing of actions of this nature. Otherwise, the marketplace will have no choice but to assume and bear the burden attributed to it, even if we question whether it is in fact due.
Have any questions? The team at Silva Lopes Advogados can help!
*Layon Lopes is the CEO of Silva | Lopes, Euzébio is a partner and Tayrê Balzan is a member of the Silva | Lopes team.
