Government of BrazilMinistry of Justice

Department of Consumer Protection and Defense

Consumer Protection and Defense in Electronic Commerce

Eliane Moreira

PublicFTAA.ecom/inf/127

February 27, 2002

Original: SpanishTranslation: FTAA Secretariat

OutlineOutline

Consolidation of consumer defense in Consolidation of consumer defense in BrazilBrazil

Consumer Defense CodeConsumer Defense Code National System for Consumer Protection National System for Consumer Protection

and Defenseand Defense Consumer protection and defense in Consumer protection and defense in

electronic commerce electronic commerce

Consolidation of consumer defense in Consolidation of consumer defense in BrazilBrazil

Federal ConstitutionFederal Constitution Fundamental rights and guarantees of citizensFundamental rights and guarantees of citizens UN Resolution No. 39/248 UN Resolution No. 39/248 General principles underpinning Brazil’s economic General principles underpinning Brazil’s economic

regulationsregulations Acts embodying transitional Acts embodying transitional

provisions provisions

Changes in consumer relationsChanges in consumer relations

ImpersonalityImpersonality Indirect transaction systemsIndirect transaction systems Tremendous growthTremendous growth Increased sophistication and complexityIncreased sophistication and complexity Consumer vulnerabilityConsumer vulnerability State intervention needed to reduce State intervention needed to reduce

imbalances imbalances

Consumer Defense CodeConsumer Defense Code

Public order and public interest regulationsPublic order and public interest regulations National Consumer Relations PolicyNational Consumer Relations Policy Basic Consumer RightsBasic Consumer Rights Quality of Goods and ServicesQuality of Goods and Services Prevention of and compensation for injuryPrevention of and compensation for injury Commercial practicesCommercial practices Protection of contractsProtection of contracts Administrative penaltiesAdministrative penalties Criminal offensesCriminal offenses Legal defenseLegal defense National Consumer Defense SystemNational Consumer Defense System Collective Consumption AgreementCollective Consumption Agreement

Principles of the National Consumer Principles of the National Consumer Relations PolicyRelations Policy

Recognition of consumers’ vulnerabilityRecognition of consumers’ vulnerability Need for government action Need for government action Need to reconcile the interests of all the players Need to reconcile the interests of all the players

involved in commercial transactionsinvolved in commercial transactions Aligning consumer protection with the need for Aligning consumer protection with the need for

economic and technological development, based economic and technological development, based always on good faith and the need to strike a balance always on good faith and the need to strike a balance between consumer-supplier relationsbetween consumer-supplier relations

Basic Consumer Rights

Protection of life, health and safety Consumer education Right to information Protection from deceptive and fraudulent advertising,

and coercive or unfair commercial practices Prevention of and compensation for moral or material

damage Access to consumer rights defense

National Consumer Defense National Consumer Defense SystemSystem

Branch structure, participative and made up Branch structure, participative and made up of independent entities and bodiesof independent entities and bodies

Federal level: Department of Consumer Federal level: Department of Consumer Defense of the Ministry of JusticeDefense of the Ministry of Justice

At the State, municipal and district levels: At the State, municipal and district levels: over 720 consumer defense and protection over 720 consumer defense and protection foundations, known as PROCONfoundations, known as PROCON

Grass roots consumer defense entities Grass roots consumer defense entities

Consumer RelationsConsumer Relations

Consumer: natural or juridical person that is the end user of the Consumer: natural or juridical person that is the end user of the product or service purchased or used by said person. product or service purchased or used by said person.

Supplier: natural or juridical person, whether public or private, Supplier: natural or juridical person, whether public or private, local or foreign, who pursues activities involving the production, local or foreign, who pursues activities involving the production, assembly, creation, construction, transformation, import, export, assembly, creation, construction, transformation, import, export, distribution or marketing of products or the provision of servicesdistribution or marketing of products or the provision of services

Products: movable and immovable property, of a tangible or Products: movable and immovable property, of a tangible or intangible natureintangible nature

Provision of services: any acts performed in the consumer Provision of services: any acts performed in the consumer market in exchange for payment, except such acts stemming market in exchange for payment, except such acts stemming from employment relationships.from employment relationships.

Consumer Relations in B2C Consumer Relations in B2C Electronic Commerce Electronic Commerce

Consumer relations resulting from “business to consumer” Consumer relations resulting from “business to consumer” (B2C) electronic commerce were covered by the (B2C) electronic commerce were covered by the Consumer Defense Code (CDC)Consumer Defense Code (CDC)

Consumer – accesses the InternetConsumer – accesses the Internet Supplier – makes access possible Supplier – makes access possible

or makes its products or servicesor makes its products or services

available on the Internet available on the Internet

JurisprudenceJurisprudence

Decisions on pedophilia, royalties or intellectual propertyDecisions on pedophilia, royalties or intellectual property

Superior Court of Justice (STJ) Superior Court of Justice (STJ)

and Federal Supreme Court (STF)and Federal Supreme Court (STF)

– – tendency to consider tendency to consider

software downloads as the software downloads as the

provision of a service provision of a service

E-Commerce Bills before CongressE-Commerce Bills before Congress

Digital signatureDigital signature Computer fraudComputer fraud Responsibility of access providersResponsibility of access providers Data privacyData privacy Electronic CommerceElectronic Commerce User RegistrationUser Registration

Controversial IssuesControversial Issues

Electronic contractsElectronic contracts Right to privacyRight to privacy SPAM and misleading advertisingSPAM and misleading advertising JurisdictionJurisdiction

B2C – Electronic ContractsB2C – Electronic Contracts

Contract safetyContract safety Laws applicable to B2C contractsLaws applicable to B2C contracts Prior knowledgePrior knowledge Interpretation in favor of the consumerInterpretation in favor of the consumer Adhesion contractsAdhesion contracts Right to change one’s mindRight to change one’s mind

AdvertisingAdvertising

SPAMSPAM

Misleading advertisinMisleading advertisin

Abusive advertisingAbusive advertising

Right to PrivacyRight to Privacy

CookiesCookies

Right to information and privacyRight to information and privacy

JurisdictionJurisdiction

Effectiveness of judicial decisionsEffectiveness of judicial decisions

Cooperation mechanismsCooperation mechanisms