Opinion was adopted by the Special Civil Section in the first Incident of Resolution of Repetitive Claims on the issue tried in Brazil
The Court of Appeals of Mato Grosso do Sul (TJMS) ruled that notifications by electronic means (e-mail or text message by SMS and WhatsApp) are valid when reporting the entry of consumers in lists of delinquent debtors, provided that the submission and receiving of the communication are proven. However, reading confirmation is not required.
The opinion was adopted by the Special Civil Section in the first Incident of Resolution of Repetitive Claims (IRDR) on the issue domestically tried. The decision therefore unifies the opinion of TJMS. About 3,000 lawsuits were paused (stayed) to await trial.
The ten justices who make up the Special Section unanimously considered recent decisions of the private law panels (3rd and 4th) of the Superior Court of Justice (STJ) and Precedent No. 404 of the Court, of 2014, which waives the report of delivery (AR) in the letter of communication to consumers of their entry in debt score databases and registrations.
The justice reporting on IRDR Mr. Ary Raghiant Neto. He held the opinion that “electronic notification is appropriate to advance the purposes of the rule under review [the Consumer Protection Code – CDC], strictly necessary and proportional, as it promotes the legal objective in line with the values of freedom of enterprise and protection of the environment, without jeopardy of the principle of consumer protection.”
The justice also states, in his opinion, that “the consumer’s integration into the digital world cannot be taken for granted or presumed abusive in the transit of rights and duties, obligations and burdens of consumer relations” (IRDR No. 0835488-67.2023.8.12. 0001/5000).
To Valor, Raghiant Neto commented that this issue “opens a window to emphasize the fact that electronic media are part of the daily lives of citizens and the Judiciary Branch.” For him, it is necessary to “include the new technologies in the search for a faster and more effective process.”
According to Daniel Feitosa Naruto, partner of Ernesto Borges Advogados, who represented Boa Vista Serviços in this IRDR, the discussion is relevant because it reaches a significant number of people who seek the court system to annul notifications in view of Article 43, paragraph 2, of CDC, when carried out electronically and claim compensation for alleged moral damages undergone.
“The trial, even if regional, is a strong indication of the tendency to adapt the Consumer Protection Code, dated 1990, in the face of technological advances,” he affirms.
For him, the possibility of notification by electronic means under no circumstances would impair consumer protection or stand as an offense to their dignity, not conflicting with the main purpose of CDC. “On the contrary, it boils down to adapting and updating consumer rules to the legal system itself, which for years has been keeping up with technological advances.”
Ronaldo Kochen, from Souto Correa Advogados, shares the opinion that electronic notification is the most appropriate way to communicate with consumers about their entry in credit protection lists. “With the advancement of technological access, these solutions end up becoming more effective and appropriate than conventional practices, such as correspondence notification sent to the physical address,” the lawyer says.
In the lawyer’s opinion, TJMS decision is relevant, as it deals with the procedures that debt score registration entities should adopt so that entries are valid, thus preventing from being held liable for nonpecuniary damages resulting from improper entries. “If physical correspondence is required, then the entry made that is coupled with an electronic communication would be invalid, giving rise to nonpecuniary damages.”
According to Kochen, although the appellate decision which rendered the decision on IRDR is well grounded, it is possible that the issue will be taken to STJ through an appeal. According to him, the matter has been widely discussed in the high court.
The lawyer recalls that the STJ’s 3rd Panel had been ruling that physical correspondence should be forwarded to communicate a consumer’s entry on debt score registrations. In 2023, several decisions were unanimous in this regard. In September of this year, however, based on the precedent of the 4th Panel, the 3rd Panel’s justices changed their opinion.
They followed, by majority opinion, the position that considered electronic notifications valid. At the trial, Justice Nancy Andrighi, who eventually had a dissenting opinion, pointed out that the decision would be changing the panel’s caselaw (Special Appeal No. 2092539/RS).
The consumer lawyer in the case tried through an IRDR was sought by Valor, but declined to comment on the matter.
Autor: Daniel Feitosa Naruto • email: daniel.naruto@ernestoborges.com.br • Tel.: +55 67 3389 0123
