An open, empty delivery box next to a smartphone showing a generic online shop ad

Piracy has moved online, and it borrows real brands

In the latest issue of Affari, the magazine of the Italian Chamber of Commerce of São Paulo (ITALCAM), lawyer Armando Luiz Rovai makes a simple point. Piracy's centre of gravity has moved to the digital environment. Fake online stores, social media profiles and sponsored ads let large distributors reach consumers at scale and with a high degree of anonymity, so seizing goods is no longer enough (Affari no. 191, September-October 2026, p. 64).

This article takes that point one step further. When a fake store uses a real brand to sell a product that never arrives, or arrives unsafe, who answers under Brazilian law? Since mid-2025, Brazil's highest courts and its telecoms regulator have given clearer answers than most European companies realise.

The scale

Online shopping scams are now the most frequent form of digital fraud in Brazil, according to the Global Anti-Scam Alliance. The published figures point the same way:

  • Brazilian e-commerce recorded more than 368,000 fraud attempts in the first quarter of 2026, according to Serasa Experian's fraud map. The same coverage reports 10,053 fake ads, profiles, pages and apps, up 8.3% in the period (Mercado&Consumo).

  • Losses from e-commerce fraud are expected to exceed R$ 8.1 billion (Brazilian reais) by the end of 2026, according to a study by Koin and Gmattos (Band).

  • 16.5 million Brazilians were victims of digital scams between March 2025 and February 2026, with estimated losses of R$ 21.2 billion (Central do Varejo, on the Global Anti-Scam Alliance report).

  • Between 1 and 24 November 2025, Redbelt Security identified 5,125 active fraudulent pages, with peaks of up to 180 new fake sites per hour (Mercado&Consumo).

How the scheme works

The pattern described in police reports and court files is short:

  1. A store is set up quickly, often copying the name, logo and product photos of a real company.

  2. It buys sponsored ads on social networks, with prices well below the market.

  3. The consumer pays, usually by card or by Pix, Brazil's instant payment system.

  4. Nothing arrives, or a box arrives empty.

  5. The consumer complains to the only name they recognise: the real brand.

In February 2025, São Paulo's Civil Police dismantled a group that ran fake auto-parts sites copying the look and name of real shops. The scheme moved about R$ 6 million (Portal da Autopeça).

Four parties stand between the fraudster and the consumer: the platform that sold the ad, the marketplace, the payment company and the manufacturer or importer. Brazilian law now treats each one differently.

The platform that sold the ad

A platform that is paid to promote an unlawful ad is now presumed liable. Until 2025, article 19 of the Marco Civil da Internet, Brazil's 2014 internet law, protected platforms: they answered for third-party content only if they ignored a specific court order.

On 26 June 2025 the Supremo Tribunal Federal (STF), Brazil's Supreme Court, held that rule partly unconstitutional. The decision, RE 1.037.396, is a binding precedent known as Tema 987 and was published on 5 November 2025. Three points matter here:

  • Paid ads and boosted content. The platform is presumed liable for unlawful content, even without prior notice. It escapes only by proving it acted diligently and within a reasonable time to take the content down.

  • No automatic liability. The ruling states that liability under this precedent is not strict, meaning it still depends on fault. In June 2026, deciding requests for clarification, the Court described the presumption as rebuttable (Teletime).

  • Forward only. The new reading applies to future cases. Courts still apply the old rule to earlier facts.

Local courts have started to follow. On 9 June 2026, an appeals panel of the small-claims courts of Rio Grande do Norte ordered Facebook to refund a consumer who bought after seeing a sponsored ad (case 0818807-55.2025.8.20.5004). The panel separated simple hosting from paid promotion and treated the platform as an active part of the supply chain under the consumer code. It awarded the amount lost, but no compensation for distress.

The marketplace

A marketplace answers under the Código de Defesa do Consumidor (CDC), Brazil's consumer code. Tema 987 says so expressly, and the small-claims courts (Juizados Especiais) had already been deciding that way when the sale and the payment take place inside the platform.

Four 2025 decisions show the pattern:

  • Alagoas, 24 September 2025 (0700220-55.2024.8.02.0075). A buyer ordered a MacBook Air on Mercado Livre and received an empty box. The platform was held jointly liable because it intermediates the sale and profits from it: refund plus R$ 3,000 in moral damages, the Brazilian term for compensation for non-financial harm.

  • São Paulo, 22 October 2025 (1001751-06.2024.8.26.0247). A printer bought through the same platform also arrived as an empty box. The seller blamed the platform's distribution centre; the platform said the buyer did not meet the rules of its purchase-protection programme. The panel rejected both defences: refund plus R$ 3,000.

  • Paraná, 17 February 2025 (0021923-82.2024.8.16.0014). Another empty box, this time a mobile phone. The platform accepted the complaint and refunded quickly, so the panel awarded no moral damages.

  • Mato Grosso, 10 February 2025 (1036373-90.2024.8.11.0001). A product was never delivered and the platform offered no solution: moral damages were presumed.

The platform's liability is close to constant. What changes the bill is the response: a fast refund ends the matter, silence adds damages. The amounts are small, but a claim in the small-claims courts costs the consumer little, so the exposure lies in volume.

The payment company

For payment companies, the role played in the transaction decides the outcome. The Superior Tribunal de Justiça (STJ), Brazil's highest court for non-constitutional matters, drew the line in two 2026 decisions.

  • The card issuer is not the seller's guarantor. On 9 February 2026 the STJ ruled on a purchase made on a third-party website with a card issued by a payment institution (REsp 2.164.130/SP). The product never arrived. Because the payment itself was processed without fault, the Court treated the seller's fraud as an act of a third party and found the issuer not liable. It stressed that the answer differs when the same company acts as a marketplace.

  • Whoever let the fraudster in can be charged back. On 24 August 2026 the STJ confirmed that a bank that reimbursed a consumer for card fraud may recover the amount from the acquirer, the company that enabled the merchant to accept cards (AgInt no AgInt no AREsp 2.711.423/SP).

Read together, the two decisions say that the cost of a fraud tends to travel up the payment chain to whoever accepted the fraudulent merchant as a client.

When the product arrives, and is dangerous

The risk is not only an empty box. Phones, chargers, batteries and routers must be approved (homologated) by Anatel, Brazil's telecoms agency, before sale. Cheap accessories sold online often are not.

Anatel has moved against the sales channel. In June 2025 it sealed 3,300 irregular or non-approved products in eight distribution centres of Amazon, Mercado Livre and Shopee (Teletime). On 1 August 2025 it approved a resolution making marketplaces jointly liable with sellers for non-approved products (Teletime). This is administrative liability, meaning fines from the agency. Compensation to an injured consumer runs separately, through the courts.

There, article 12 of the consumer code makes the manufacturer, the producer and the importer liable for unsafe products regardless of fault. Three recent decisions apply it to exploding phones:

  • Rio de Janeiro, 14 April 2026 (0006453-64.2017.8.19.0081). A court expert found a battery fault that set a home on fire. The manufacturer was ordered to pay R$ 5,169.20 for the damage and R$ 30,000 in moral damages. The court added that certification by a regulator does not remove liability for a specific manufacturing defect. The claim against the retailer was rejected.

  • Rio de Janeiro, 25 February 2026 (0814668-81.2024.8.19.0038). A phone exploded and burned a mother and her daughter. The manufacturer produced no expert evidence and paid R$ 8,000 in moral damages plus the material loss.

  • Rio Grande do Sul, 23 April 2025 (5005135-76.2023.8.21.0086). A phone exploded while not charging. The manufacturer presented no technical report: R$ 8,000.

For unbranded accessories the chain is shorter. Article 13 of the same code makes the retailer liable when the manufacturer or importer cannot be identified.

Europe is not immune. In May 2023 a sixteen-year-old in the province of Avellino, Italy, died of electrocution in the bath while her phone was charging. Prosecutors say the charger was non-compliant and carried a false European conformity mark. They have asked for six people to stand trial, among them importers and a local shopkeeper (StartupItalia, LiveSicilia).

The brand as victim

The company whose name is copied is a victim too, and since Tema 987 it has a faster route. For unlawful content, and expressly for accounts reported as not authentic, the platform becomes liable once it has been notified and fails to act. A court order is no longer the starting point.

The ruling also obliges platforms to keep a notification system, channels open to people who are not users, yearly transparency reports and a legal representative in Brazil. A foreign company therefore has a formal door to knock on.

Two decisions show what is at stake for a company:

  • Rio Grande do Sul, 29 August 2025 (5038026-17.2023.8.21.0001). Fake Instagram profiles used a company's brand, image and visual identity to defraud its customers. They stayed online after an out-of-court notice and a court order. The court held the platform liable, kept the daily fines for the delay and presumed the moral damage to the company. The facts predated Tema 987, so the old rule applied.

  • São Paulo, 25 June 2026 (1001766-85.2025.8.26.0587). A fake WhatsApp account used a lawyer's name and photo to defraud his clients. The platform was found negligent and ordered to remove the account and cover the material loss. Moral damages to the firm were denied for lack of proof of harm to its reputation.

The contrast is the lesson: harm to a brand is sometimes presumed and sometimes has to be proved. Dated notices, saved screenshots and the exact addresses of the fake profiles decide which side of that line a company lands on.

Legal scholarship points the same way. In a 2025 book on platform liability, João Longhi lists companies, brands, products and mascots among the most common types of fake profile. He also notes that terms of use excluding the platform's liability are void under article 51 of the consumer code (Jusbrasil).

Six questions before the first sale

A European brand can be affected before it sells a single unit in Brazil. These questions cost little to ask early:

  1. Is anyone already advertising in Brazil with our name, logo or product photos? Sponsored ads on the main social networks can be searched in public ad libraries.

  2. Is our trademark registered in Brazil? Registration with INPI, the national intellectual property office, is the clearest proof of ownership when asking a platform or a court to act.

  3. Who would file a documented notice to the platform, through which channel, and who keeps the evidence?

  4. If we sell through a marketplace, who handles after-sales and how fast? The courts treat a quick refund and a slow one very differently.

  5. If one of our products fails, who is the importer on record? Under the consumer code the importer answers alongside the manufacturer.

  6. Do our electrical and electronic products hold the approvals Brazil requires? With marketplaces now jointly liable, listings without them are the first to be removed.

One practical limit applies. The small-claims courts that produce most of these decisions are reserved for individuals and for micro and small businesses. A foreign company would normally have to use the ordinary courts, which are slower and costlier. That makes prevention and prompt notice worth more than litigation.

Sources

Starting point

  • Armando Luiz Rovai, "Pirataria: repressão e cidadania", Affari (ITALCAM) no. 191, September-October 2026, p. 64.

Court decisions (headnotes consulted on Jusbrasil)

  • STF, RE 1.037.396/SP (Tema 987), full court, rapporteur Justice Dias Toffoli, decided 26 June 2025, published 5 November 2025.

  • STJ, REsp 2.164.130/SP, 3rd Panel, rapporteur Justice Moura Ribeiro, decided 9 February 2026.

  • STJ, AgInt no AgInt no AREsp 2.711.423/SP, 4th Panel, rapporteur Justice Antonio Carlos Ferreira, decided 24 August 2026.

  • TJ-RN, Recurso Inominado 0818807-55.2025.8.20.5004, 3ª Turma Recursal, decided 9 June 2026.

  • TJ-AL, Recurso Inominado 0700220-55.2024.8.02.0075, Turma Recursal Unificada, decided 24 September 2025.

  • TJ-SP, Recurso Inominado 1001751-06.2024.8.26.0247, 3ª Turma Recursal Cível, decided 22 October 2025.

  • TJ-PR, Recurso Inominado 0021923-82.2024.8.16.0014, 3ª Turma Recursal, decided 17 February 2025.

  • TJ-MT, Recurso Inominado 1036373-90.2024.8.11.0001, 3ª Turma Recursal, decided 10 February 2025.

  • TJ-RJ, Apelação 0006453-64.2017.8.19.0081, 8ª Câmara de Direito Privado, decided 14 April 2026.

  • TJ-RJ, Apelação 0814668-81.2024.8.19.0038, 13ª Câmara de Direito Privado, decided 25 February 2026.

  • TJ-RS, Apelação 5005135-76.2023.8.21.0086, 9ª Câmara Cível, decided 23 April 2025.

  • TJ-RS, Apelação 5038026-17.2023.8.21.0001, 15ª Câmara Cível, decided 29 August 2025.

  • TJ-SP, Recurso Inominado 1001766-85.2025.8.26.0587, 4ª Turma Recursal Cível, decided 25 June 2026.

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