Google ordered to pay damages for publishing photos on Orkut.

Legal Consultant - Social networking sites are responsible for the content published on them, including pornographic content. With this understanding, the 5th Civil Chamber of the Court of Justice of Mato Grosso upheld the conviction of Google Brasil Internet Ltda for allowing the publication, on January 17, 2007, of photos of a nude woman in various sexual positions on the Orkut social networking site. The photos were posted by a user with an anonymous profile. By majority vote, and following the understanding of the reviewing judge, Sebastião de Moraes Filho, the chamber only partially accepted the company's appeal and reduced the amount of compensation for moral damages and lost profits to be paid to the victim from R$ 108 to R$ 47.

The appeals court judge, Dirceu dos Santos, upheld a first-instance ruling by the Pedra Preta district court, which ordered Google to pay R$60 in damages for moral harm and R$48 for lost profits, as the young woman was fired from her job the day after the images were published. The judge ruled that there was no evidence in the case file that the victim intended to publicize the sexual acts she was performing with her fiancé, and that the company should be held responsible for the pornographic content published on the site. The judgment in the aforementioned case was published on February 27th.

In his vote, the reviewing judge, Sebastião de Moraes Filho, stated that Google has an obligation to monitor the content of its publications and that, by failing to do so, it becomes legally responsible for any damages, whether moral or material. “We have that the appellant Google, possessing tools for the removal of publications, also has an obligation to monitor, and if it fails to do so, under the theory of risk (sole paragraph, article 927 of the 2002 Civil Code), it becomes legally responsible for any damages, material or moral, arising from the misuse of its tools, insofar as it did not restrict the practice observed, that is, the creation of profiles by identified or anonymous users, as is the case in this matter,” he said.

However, the judge asserted that the victim also contributed to the harmful event, since she allowed herself to be photographed naked and engaged in sexual activity. "It cannot be ignored that a person who allows themselves to be photographed in those situations also contributed to the event through negligence regarding their own image, and thus, the figure of contributory negligence is evident." According to the magistrate, if the appellee consented to the digital photos being taken on the camera owned by her then-fiancé and that these photos not be deleted, her responsibility is also clear and, consequently, contributory negligence is evident.

Having established contributory negligence, the judge considered that the degree of culpability of both parties was equal and, therefore, opted to reduce the amount of compensation for moral damages from R$ 60 to R$ 30. Regarding lost profits, the reviewing judge assessed that the calculation of R$ 48 was incorrect, as it disregarded deductions, including social security contributions. Therefore, he reduced the amount to R$ 34, which, divided between the parties due to contributory negligence, resulted in R$ 17. This is how the final amount of R$ 47 was reached. Judge Marcos Machado, a convened member of the panel, followed the reviewing judge's opinion.

In its appeal, the company clarified the functionality and technical and legal limitations of the Orkut website, highlighting that there were ways to report abuse and that it was impossible to control the content posted by users. It argued that the Consumer Protection Code was inapplicable to the case, therefore making it a matter of subjective liability. It argued that there was no causal link between its actions and the damage suffered, as the event was allegedly caused by a third party and the victim's sole fault. It further alleged that there were no grounds for moral damages or lost profits, arguing that these were excessively awarded in the initial judgment. (Information from the Press Office of the TJ-MT).