The sale of products not approved by Anatel (National Telecommunications Agency), such as cell phones, can generate fines for the Free Market. The agency revised a 2015 opinion that was opened to investigate the sale of pirated products within the marketplace, which can suffer fines and administrative penalties. Anatel can still, according to the new opinion, demand an inspection in the Free Market warehouses.
Mercado Livre stores unapproved items, says PFE
Mercado Livre may be close to being fined by Anatel for selling pirated equipment. In a new understanding, the Specialized Federal Attorney (PFE) – an agency of the Attorney General of the Union (AGU) that provides legal advice to Anatel – claims that the retailer can be held responsible for the sale of unapproved devices, because it offers storage and fast delivery to anyone who sells without Anatel’s authorization.
Last week, Procon-SP invited company representatives to discuss the sale of illicit products. Thanks to the meeting, there was a collaboration commitment of Mercado Livre to stop the sale of illegal items in its marketplace, as well as advertisements by irregular sellers.
“In other words, the administrative responsibility of the Free Market derives from its effective and essential participation in the vertical supply chain of products”, writes the PFE in a document published in the SEI (Electronic Information System) of Anatel on Monday (23 ).
The new opinion is a response to Anatel’s Superintendence of Inspection (SFI). Before, she understood that the responsibility for selling and advertising the pirated product rested with the advertiser; the agency required the user to remove any advertisements about pirated products. Otherwise he would be fined.
However, due to the exemption from liability of marketplaces for the sale of non-approved products, the SFI detected difficulties in complying with the implementation of the Action Plan to Combat Piracy (PACP), created in 2018. The superintendence asked that the agency’s policy telecommunications was reviewed, and questioned: “does Anatel have the power to adopt any coercive measures in the face of the advertising site?”.
Anatel’s new opinion is based on court decisions
In the new opinion, the PFE discards the previous understanding. The attorney’s office is based on legal decisions from the Courts of Justice in states such as Minas Gerais (MG) and Rio Grande do Sul (RS), which condemned the Free Market in cases of fraud in the sale of products and piracy. The TJs confirmed that the retailer is part of the consumption chain and participates as an agent between sellers and consumers.
Another decision that supported Anatel’s new opinion came from Senacon (National Consumer Department). Until then, the sales sites claimed that the ads, 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.
But, in 2019, Senacon — responsible for enforcing the Consumer Defense Code (CDC) — dismissed the retailers’ justification, claiming that “you cannot confuse an internet content provider with marketplaces designed to buy and sell goods in environments virtual”.
Marketplaces, such as Mercado Livre, are playing an increasingly vital role in the consumption chain. This is PFE’s assessment to hold e-commerces responsible for selling pirated products.
According to the Brazilian Electronic Commerce Association (ABCOMM), marketplaces had a boom during the pandemic, reaching 78% share of the B2C (business to consumer) e-commerce market.
Mercado Livre says it excludes illegal sellers
In note to the Techblog, the Free Market says:
Mercado Livre informs 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.
As soon as an irregular advertisement is identified, in addition to excluding and notifying the seller, the company reports it to Organs competent bodies. In addition, the platform acts quickly on complaints, which can also be made by any user, through the “report” button present in all advertisements.
It also emphasizes 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 to 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.