the telephone operator clear SA was ordered to pay compensation for BRL 3 thousand to a consumer in the Federal District, for Excessive calls and sending of messages offering products and services. According to the plaintiff, the contacts took place every day, and at different times.
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The second-instance decision is 3rd Appeals Panel of the Special Courts of the Federal Districtwhich also determined that the company interrupt the connections, considered as “abusive” by the judges. The decision was unanimous.
Claro said, through a note, that it does not comment on judicial decisions. In the process, the operator stated that it was not proven that the calls to the user were made by the company.
According to the plaintiff, in October 2021, Claro started making calls and sending text messages and by messaging app, for the purchase of services and products.
Even with product refusals and requests for the company to stop making calls, the woman said that the operator continued to make calls at any time of the day.
For that reason, she decided to go to court, which determined, in a lower court decision, that the company indemnify the plaintiff.
Claro appealed the conviction, stating that the plaintiff had not proven that the contacts were made by the company. According to the lawsuit, the company claimed that there were no complaints recorded by the woman about the calls.
The company also said that the consumer could block unwanted calls, “as well as adhere to the ‘Do not disturb me’ system.” The operator claimed that the calls constituted “mere annoyance, not being sufficient fact to indemnify moral damages” and that the plaintiff, therefore, sought “illicit enrichment”.
Faced with Claro’s arguments, the client proved calls from six different numbersbeing 14 calls made after 18 pmas well as SMS texting and messaging app.
The woman also confirmed the almost daily frequency of calls. In just one day, she received 12 links made by the company.
The 3rd Class attested that telemarketing calls are made from “numerous lines”, so the consumer could not block all the phones, as the company claimed. For the collegiate, the operator’s practice infringes the copyright.
The Panel highlighted the protection provided by the Consumer Defense Code, which prohibits abusive practices on the part of the service provider.
“It should be noted that the exercise of the right to offer services has limits on the purpose for which it is intended, and the holder must be punished when it goes beyond it, as in the present case, in which the practice of objective illicit act or abuse of right (art. 187 of the Civil Code), in view of the fact that the defendant makes excessive contacts of advertising offers to the consumer, without any request on her part”, says the decision.
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