Protagonism in the Brazilian Judiciary

The changes in the current context of Digital Transformation require dedication and continuous professional improvement, especially in the legal segment. Responsible for thinking about new solutions and means of regulating a society of non-presence relations, electronic evidence, machine witnesses, information frontiers and intangible assets, coexist with the revision of the fundamental institutes of Law related to different themes, such as identity, sovereignty, privacy , freedom of expression and digital ethics itself.

In this context, where the Digital Law represents the evolution of Law itself, the Peck Advogados team, together with the founding partner Dr. Patricia Peck Pinheiro, carry out an innovative work, from analyzes, works and pioneer deliveries, contributing to decisions historical and leading the advance of the themes of digital law in the Brazilian judiciary.

By understanding technology and new media, with technical, practical and specialized knowledge, they are distinguished professionals and awarded in Intellectual Property, Innovation, Privacy and Data Protection, Compliance, Risk Management and Information Security. The technical, practical and specialized knowledge serves as the basis for the Brazilian judiciary as a source of research and also to support evaluations and understandings.


DOCTRINE OF DRA. PATRICIA PECK IS REFERENCE ON DIGITAL CONTRACTS

In June 2018, the Third Panel of the Superior Court of Justice decided that, even without the signature of witnesses, there may be execution in case of default in electronic contracts. To support the understanding, ministers used as a basis the work “Digital Law” (6th edition) and the research conducted by Dr. Patricia Peck Pinheiro.

This is a view defended by Peck Advogados since its foundation in 2004, and evidenced by the founding partner in its analyzes. The doctrine serves as a basis for legally enabling the use of electronic contracts by the clients of the office. “In an electronic contract, the witness of the facts is the machine itself. The Digital Law seeks to evolve in the interpretation of the legal institutes to adapt them to the new reality of technological transformation of the Society “, explains Dr. Patricia Peck.

The rapporteur, Minister Paulo de Tarso Sanseverino, cited the lawyer’s explanation of the validity of electronic contracts. “There is a technology capable of producing a secure way of transmitting, through the internet, the documents and records that represent a particular legal business.”

It is worth mentioning that Minister Ricardo Villas Bôas Cueva used the work to reinforce that there are two basic requirements for attributing evidence to electronic contracts: authenticity and integrity. (In: Digital Law, 6th ed., São Paulo: Saraiva, 2016, page 540).


The new jurisprudence joins other decisions of the Superior Court, as well as state courts (TJSP and TJMG) and labor (TRT 2nd Region), signing since 2006 the theses of Peck Advogados in the understandings of the Brazilian judiciary on issues such as civil liability, removal of content from the internet and burden of proof:

STJ, REsp # 1308830 / RS, Minister Nancy Andrighi, third class, 08/05/2012, DJE 05/18/2012:

“(…) Patricia Peck shares this idea and presents an example that perfectly fits the hypothesis of the case. The author considers “a herculean and humanly impossible task” that “the GOOGLE company monitors all videos posted on its ‘youtube’ website in advance,” but understands that “when communicated, either by an authority or by a user , that a particular video / text has potentially offensive and / or illicit content, such company must act in a forceful manner, removing it immediately from the air, under penalty of, therefore, to respond jointly with its author before the omission (STJ, REsp 1308830 / RS, Rel. Minister NANCY ANDRIGHI, THIRD COURT, adjudicated on August 8, 05/2012, DJE 05/18/2012).

STJ, REsp # 1,186,616 / MG, Minister Nancy Andrighi, third class, 08/31/2011:

“CIVIL APPEAL – OFFENSIVE INFORMATION POSTED ON THE INTERNET – RESPONSIBILITY OF THE PROVIDER – REMOVED IMMEDIATELY FROM THE AIR PAGE AFTER COMMUNICATION – ABSENCE – CONFIRMED MORAL DAMAGES – INCIDENCE OF THE CONSUMER PROTECTION CODE. – The commercial exploitation of the internet configures consumer relation and is subject to the provisions set forth in Law No. 8,078 / 90. – As Patricia Peck says, the prior inspection by the content provider of the content of the information posted on the web by each user is not an intrinsic activity to the service provided, so that it can not be considered defective, under the terms of art. 14 CDC, the site that does not examine and filter the data and images inserted in it. The moral damage resulting from messages with offensive content inserted in the site by the user does not constitute a risk inherent in the activity of the content providers, so that the objective liability provided in art. 927, sole paragraph, CC / 02. When it is communicated that a text or image has unlawful content, the provider must act energetically, removing the material from the air immediately, failing to respond jointly with the direct author of the damage, due to the omission practiced” (STJ, REsp , 1,186,616 – MG, Rel. Min. Nancy Andrighi, 08/31/2011).

TJ-MG, Civil Appeal No. 0456532-68.2010.8.13.0024, Rapporteur José Marcos Vieira, 05/11/2011:

“Once again, important is the lesson of PATRICIA PECK PINHEIRO, on civil liability in digital law: Considering only the Internet, which is media and communication vehicle, its indirect damage potential is much greater than direct damages, and the possibility of cause injury to another, even without guilt, is real. Therefore, risk theory addresses virtual issues and solves it more appropriately, and should be very closely associated with the legal determination of who is the burden of proof in each case.”

STJ, REsp # 1,193,764 – SP, Minister Nancy Andrighi, 12/14/2010:

Patricia Peck shares this idea and presents an example that perfectly fits the hypothesis of the case. The author considers “a herculean and humanly impossible task” that “the GOOGLE company monitors all the videos posted on its ‘youtube’ website, in advance,” but understands that “when communicated …”

TJ-SP, Instrument of Injury 584.783.4 / 7-00, Rapporteur Egidio Giacoia, 12/02/2008

“Here, it is worth to transcribe the lessons of PATRICIA PECK PINHEIRO” in “Digital Law, Saraiva, 2nd Ed./2001, p. 123, on hosting providers.”

TRT 2ª, Judgment nº2006 0395367, Rapporteur: Dr. Valdir Florindo, 06/09/2006:

“To get an idea of ​​the repercussion of the ‘orkut’ site, as well as its evils, it is valid to transcribe the positioning of Patricia Peck, author of the book ‘Digital Law’, in his article ‘The evils of Orkut and other evils of technology’ : “The internet is not simply a computer network, it is a network of people, and as such, it is subject to the laws in force in the countries in which people meet. Like any technology, it can be used for good, or for evil. The question of ethics and legality in the use of technology is old in law. “

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