The Consumer Protection Law and the responsibility for operations performed through an Internet site

Tribunal I of the Administrative and Tributary Court of Appeals of the City of Buenos Aires, in a non-unanimous decision, modified a fine imposed on the company Deautos S.A., a fine that had been imposed because of supposed infringements to articles 7, 8 and 37 of the Consumer Protection Law. These referred articles concern the requirements that the offer should contain (art. 7), the integration in the respective agreements of the statements contained in advertisements about the offers of goods and services (art. 8), and the so-called “abusive clauses” (art. 37).

The company, owner of an Internet site used to link providers of vehicles with potential buyers, had been denounced by one of the site users. The plaintiff had apparently made an offer to buy a vehicle, and when he went to the car distributor that had the vehicle to sell, he noticed that the vehicle did not have all the elements that had been advertised on the Internet web page.

The vote of the majority of the Tribunal scorned the interpretation of the administrative authority that had imposed the sanction, on the grounds of considering infringed articles 7 and 8 of Law No 24,240, on behalf of the company owner of the site. The court considered that Deautos S.A. had only acted as an intermediary between the plaintiff who tried to buy the vehicle and the car distributor that had offered it. Thus it understood that the fined company had limited its performance to publish the advertisement of the car distributor as it had been received from it, in the same way that a newspaper publishes an advertisement.

Having withdrawn the charges concerning articles 7 and 8, the court confirmed the sanction regarding article 37, understanding that the terms and conditions of the Internet site included a clause qualified as “abusive”. This clause stated that the company “does not assume any obligation vis à vis the user” which, according to the vote of the majority of the tribunal, was not only abusive but meant the denial of any kind of responsibility as regards the duty of the company of publishing the true information received from the provider.

The minority vote, expressed by Justice Centanaro, proposed confirming the full sanction imposed. To reach that conclusion, the judge understood that the behavior of the company exceeded that of a publisher of that kind of advertisement and that it should be assimilated to that of an advertisement broker. As regards articles 7 and 8 of Law No 24,240, he stated that the company had failed to comply with the modalities and conditions of the offer and the characteristics formulated and published concerning the vehicle that the plaintiff intended to buy. In that way, he deemed unquestionable that “the goal of the publication on Internet is to inform the consumer of the conditions of purchase and characteristics of the product offered” and that from the information contained in the file it was clear that the site had published the referred vehicle with the omission the buyer had noticed later.