The third class of the Superior Court of Justice (STJ) unanimously upheld the conviction of Facebook, representative of WhatsApp in Brazil, for not excluding intimate photos from a minor, sent without her consent by the application.
The case arrived at the STJ after the platform appealed from a decision of the first instance, which ordered the company to divide compensation for moral damages worth $ 20,000 to a victim of the so -called “revenge porn”.
In the case in question, after the end of the relationship, a man decided to share intimate photos of his under-girlfriend, minor at the time, on WhatsApp. When she requested the removal of the content, the request was ignored. So she decided to go to court against her ex-boyfriend and the company responsible for the application.
The court ordered the immediate removal of the images, but the platform claimed that due to end -to -end encryption used by WhatsApp since 2016, it could not remove the content as it would not have access to messages sent by users.
The first instance did not accept the justification and blamed WhatsApp for not excluding the content, ordering the payment of the indemnity.
STJ upheld
The rapporteur of the case, Minister Nancy Andrighi, argued that the platform was inert in not complying with the court decision and made no effort to exclude the images. The minister understood that the platform can be liable for damage caused by content generated by third parties.
“The WhatsApp application provider’s stance is characterized as inert which, after urging to comply with the order of removal of infringing content related to underage intimate images, shared without authorization, no longer adopts any action on the basis of impossibility of exclusion of the content For supposed technical limitation of the service, ”the rapporteur said in the decision.
The minister also argued that WhatsApp took no measure to mitigate the damage to the victim. According to the rapporteur, the platform could have banned the man who was sharing the images, as provided for in the terms of use and the privacy policies of the service.
“There is no reason to see the recurring provider do not make use of their own internal control mechanisms based on their regulations and policies to use messenger services,” the minister added.
The rapporteur also recalled that, according to Marco Civil da Internet, the platform providers that host content generated by third parties are responsible when there is a violation of someone’s intimacy through unauthorized disclosure of images, videos or other private materials.
