BRAZIL Law and Practice Contributed by: Lucia Ancona Lopez de Magalhães Dias, Maria Fernanda Saab Nersessian and Camila Emi Tomimatsu, Magalhães e Dias
6. Privacy and Advertising 6.1 Email Marketing
not have any direct or indirect relationship with the brand), where the company sometimes ends up being liable for the third-party’s exclusive content. Recent cases in Brazil have led to discussion of this topic, and CONAR’s case law has varied – sometimes holding the advertiser liable for improper third-par - ty content and sometimes exempting it. Therefore, despite there being no legal duty to “monitor the net - work”, there are situations where CONAR has ruled that a supplier should act to protect its good name, even though the content in question was produced by third parties with no direct or indirect relationship with the brand. New communication arrangements have been ana - lysed by CONAR and declared as advertising, with greater flexibility in regard to the concept of editorial control (eg, discount coupons and affiliate links, as detailed in 1.9 Regulatory and Legal Trends ). When the influencer owns his/her own brand, he/she acts as a marketer. 5.5.3 Consumer Reviews Currently, there are no specific rules in Brazil regard - ing the solicitation and/or use of consumer reviews of products or services. However, Brazilian legislation contains “principles-based rules” pertaining to the veracity of information transmitted about a product or service, including any offers. Furthermore, if consumers are asked to provide a review in a non-spontaneous manner, it is recom - mended that some disclosure regarding this fact be provided, to avoid any accusation of a “review pur - chase” or “review manipulation”. It is also recom - mended that the consumer be informed – before they submit their review – about the possibility of their content being disclosed to third parties, thereby safeguarding the confidentiality of the consumer’s personal data (as provided for in Law 13709/2018).
No specific rule is applicable to email marketing. How - ever, general consumer protection rules that prohibit abusive marketing are applicable (Articles 6 (IV) and 39 (IV) of the CDC). Thus, email addresses may only be collected for mar - keting purposes with the consumer’s explicit consent, and consumers must be provided with an opt-out option. Furthermore, consumer addresses cannot be shared with third parties without prior consent. The liability for any violations under the current rules fol - lows the overall civil and consumer liability regime. The criteria for personal data use and processing, as well as the liability regime for unlawful acts, will be strengthened by the LGPD, which recently came into force. 6.2 Telemarketing Self-Regulation In 2019, telecommunications companies, jointly with the National Telecommunications Agency ( Agência Nacional de Telecomunicações ANATEL, the regula - tory agency), launched the Não Me Perturbe (“Don’t Disturb Me”) subscription platform, which allows con - sumers (via a website) to exclude their number from land and mobile telephony, TV and internet service providers’ databases – an initiative to tackle abusive marketing and provide opt-out options. Specific Laws At the federal level, ANATEL Resolution 632/2014 (later on revoked by ANATEL Resolution 765/2023, as explained in the following) established that con - sumers of telephone, paid TV and internet services are entitled not to receive advertising messages on their mobile platforms in the absence of prior, free and express consent. In 2023, ANATEL published the New General Regula - tion on Consumer Rights for Telecommunications Ser - vices (Resolution 765/2023, effective from September 2025), which in addition to the above-mentioned rule, classifies as “irregular use of telecommunications” massive call volumes (ie, those exceeding human capacity), calls with no intention of effectively com -
19
CHAMBERS.COM
Powered by FlippingBook