The controversy surrounding the issue of unsolicited, commercial emails ('spam') is not new, although the issue has yet to be officially regulated in Brazil. The absence of applicable legislation is highlighted by the first judicial decision on the subject.

The Special Court of the City of Campo Grande, State of Mato Grosso do Sul, recently heard an action for damages which was filed by a lawyer on his own behalf against companies whose domain names appeared in spam emails received by him. The lawyer claimed R5,000 damages plus indemnification for pain and suffering. He alleged that the spam:

  • constituted harassment;
  • caused inconvenience; and
  • violated both his privacy and Brazilian consumer protection and defence legislation, which prohibits the sending of unsolicitied material.

The lawyer argued that computers should be recognized as extensions of homes and, as such, subject to the same laws of privacy and inviolability.

The court ruled that there was a lack of grounds for the action; no circumstances existed to constitute violation of the plaintiff's privacy, pain and suffering or pecuniary damage. In the court's opinion, spam and the Internet may be used as convenient publicity instruments, there being no requirement for an adressee's prior authorization. Moreover, emails should be regarded as being equivalent to traditional direct mail, whereby companies send letters to consumers for the purpose of advertising their products.

With regard to the plaintiff's objection to the inclusion of his name in an unauthorized database, the court ruled that since the lawyer had a personal homepage online which disclosed his email address, he could not argue that this address had been included in a database without his knowledge.

The effect of the decision is that consumers must take responsibility for monitoring new trends and changes in the information society by adopting their own privacy measures and means of controlling internet traffic. According to the decision in question, the court may not uphold claims of violation of privacy for the receipt of unwanted messages through this medium.

For further information on this topic please contact Ricardo Barretto or Camila Ramos Montagna at Barretto Ferreira, Kujawski, Brancher e Gonçalves – Sociedade de Advogados by telephone (+55 11 3066 5999) or by fax (+55 11 3167 4735) or by email ([email protected] or [email protected]).