per Caio Nobre Britto, by Nobre Tupinamb
Approximately three months ago, Apple fired invitations to the international press to attend a special event, held on September 7, 2016. On that occasion, the manufacturer announced the launch of the iPhone 7 which undoubtedly reiterated the technological advance emerging in the world. Incidentally, breaking paradigms, he insisted on emphasizing his water resistance with videos and demonstrations.
According to the information provided, the iPhone 7 (in all of its versions, 4.7 and 5.5 inches the Plus) is correct IP67, which allows you to contact the water, as verified, including the information provided by Apple's own website:
The IP protection rating system is a standard defined by the international standard IEC 60529. This system classifies the degree of protection provided by an electrical equipment compartment against solid objects (such as dust) and liquids (water, oil, etc.).
The degree of protection provided by a compartment indicated with a 2-digit system (IP__), as described in the following table:
|X: not measured||X: not measured|
|0: no protection||0: no protection|
|1 = protected against the entry of external solid objects with a diameter of 50 mm||1 = protected against vertical dripping|
|2 = protected against the entry of external solid objects with a diameter of 12.5 mm||2 = drip protected (15% slope)|
|3 = protected against the entry of external solid objects with a diameter of 2.5 mm||3 = spray-protected (60% tilt)|
|4 = protected against the entry of external solid objects with a diameter of 1 mm||4 = splash protected|
|5 = protected against dust (limited entry, no harmful deposits)||5 = jet protected|
|6 = dust proof||6 = protected against powerful jet|
|7 = protected against temporary immersion (up to 1 meter for 30 minutes)|
|8 = protected against continuous immersion (over 1 meter deep for the period specified by the manufacturer)|
In other words, from the protection described by Apple (IP67), it is assumed that the iPhone 7 (in all its versions) is dust proof and protected against temporary immersion (up to 1 meter for 30 minutes).
Although it is customary among smartphone manufacturers to allow the use of the device with this specification in the water, Apple says the new iPhone is only splash-resistant. It also states that damages resulting from contact with liquids are not included in the warranty:
The question : Can Apple excuse itself from damage to the iPhone 7 due to contact with liquids, within the specifications presented above?
Issues related to the relevance of advertising, nowadays, is one of the most efficient tools for the circulation of consumer goods and provision of services, which can be vital economics and essential to capitalism, but can be malfeasant when it deceives consumers, harms competition and it takes place for purposes contrary to public order, law and morals. Nevertheless, it remains the main vehicle for marketing information.
The Consumer Protection and Defense Code (CDC) does not conceptualize the term advertising, although it deals with it specifically in Section III of Chapter V.
J doctrine does it in a varied way, however, giving it a conceptual focus.
The indoctrinator Cludia Lima Marques synthesizes the various approaches and conceptualizes advertising as: all information or communication disseminated with the direct or indirect purpose of promoting to consumers the purchase of a product or service, regardless of the location or means of communication used .
In a similar sense, the Brazilian Advertising Self-Regulatory Code, approved by the III Brazilian Advertising Congress, held in So Paulo, in 1978, defines commercial advertising, in its art. 8, like any activity aimed at stimulating the consumption of goods and services, as well as promoting institutions, concepts and ideas.
Given the concepts exposed, albeit succinctly, we can conclude that advertising, in a broad sense, aims to make known a product, a service or a company, aiming to stimulate in consumers the desire for the advertised thing, or create prestige for the advertiser .
In this regard, there are some nuances regarding the configuration of misleading advertising, which the supplier (of services or products) should pay attention to.
The CDC probe and conceptualizes misleading advertising, in its art. 37, caput and 1:
Art. 37. Any misleading or abusive advertising is prohibited.1 any form of information or communication of an advertising nature is misleading, whole or partially false, or, by any other means, even by default, capable of misleading the consumer regarding the nature, characteristics, quality, amount, properties, origin, price and any other product data and services.
Said legal provision protects the consumer from any information or communication of an advertising nature capable of misleading him regarding the product or service offered. Advertising that violates this legal provision is against the interests of the entire community and can cause harm to an incalculable number of consumers.
The CDC adopted a final criterion, in considering advertising as misleading to the simple placement of advertising, which is capable of misleading the consumer. In this way, only the harmful potential of advertising is taken into account, and it is not necessary that the consumer has been effectively deceived.
However, the untruths present in advertising messages do not always make them misleading, and it is necessary, for that, that their content has the effective potential to induce consumers to error, according to the understanding expressed by Fbio Ulhoa Coelho, in the following terms:
The mere insertion of untrue information, in itself, is not illegal, since it may represent the legitimate attempt to mobilize the spectator's fantasy, with the objective of promoting consumption. In other words, to characterize misleading advertising, it is not enough to convey untruths. It is also necessary for the information to be inverted, due to its content, the form of its presentation, the context in which it is inserted or the target audience, capable of deceiving the people exposed to it. Therefore, there may be some touch of fantasy (and therefore false) in the advertising pieces. This, however, does not represent aggression to the right of the spectators to the true message, because the perception of the fanciful excludes the possibility of any pretense based on the reality of the facts.
Robusting the above arguments, the CDC objectively blames the advertiser that ran deceptive or abusive advertising, according to the norm foreseen in its art. 30, with the following content:
Art. 30. Any information or advertising, sufficiently accurate, conveyed by any form or means of communication with respect to products and services offered or presented, obliges the supplier who makes it to be used or uses it and is part of the contract to be signed.
Therefore, if the advertiser's advertising induces the consumer to harm, or at least a potential danger of harm, he will be held civilly liable, being at this point the main argument for a possible legal claim.
According to the specialist in the area of ??Consumer Law, Dr. Igor Tupinamb, from the Nobre Tupinamb office, even though the advertiser did not act with the intention of deceiving consumers, the thesis of objective civil liability (company vs. customer) requires repairing the damage in the event of unlawful advertising. The latter, being denounced, proving the advertising damage and the causal link between these elements, does not discuss whether there was intent or guilt (subjective element).
Also according to him, the CDC also adopted the activity risk theory to hold the supplier responsible for disseminating misleading or abusive advertising. Only the person who can demonstrate the occurrence of a fortuitous event or force be exempt from the legal consequences of this act. Even a large part of the indoctrinators understand that the principles of the Civil Code apply in a subsidiary way in what the consumer law is omitted.
Bringing the teachings to the practical case, some approaches of Courts of Justice in the country show an understanding that brings benefits to the consumer, especially when there is a more incisive appeal by the publicized advertisements, including in the case of an unfavorable decision the biggest competitor of Apple (Samsung) . Let's look at the following case.
The consumer sought her rights with the Special Civil Court of the District of Rio Branco (AC), after a waterproof cell phone purchased from the defendant company had operating problems due to contact with excessive humidity.
Due to the fact that the consumer understands that the device could not present a defect of this nature, since it was supposedly designed to be used also in aquatic environment, including being able to be used in swimming dives, as it was used in the media, the consumer requested condemnation of the company to the payment of indemnity for moral and material damages.
The request was upheld by the judge, who considered the existence of addiction in the product, as well as the company's strict liability as a result of the consumption relationship established between the parties.
The magistrate of 1st degree of jurisdiction fixed the amount of compensation for material damages in the amount of R $ 2,400 (amount paid for the device) and the indemnity for pain and suffering in the amount of R $ 4,000, marked by the unquestionable poor quality of the product placed at the consumer's disposal.
Evidently, Samsung filed a decision, maintaining, as a thesis, that the defect in the cell phone would be the result of misuse by the consumer.
The rapporteur of the appeal filed (Appellate Appeal), Judge Jos Augusto, however, when analyzing the case, rejected the company's claim, pointing out that the technical report attached to the case file would only indicate that the telephone, which was widely advertised as waterproof , was damaged by contact with excessive humidity, thus the consumer 's hypothesis of guilt was not confirmed. In the magistrate's understanding, both material and moral damages remained duly proven during the procedural instruction, the latter being justified in view of the frustration of the just expectation of using the cell phone to take pictures underwater, according to the advertisement.
Loading this scenario from the competitor to that of Apple, we found that the similarity of situations, despite the protection attested by the competitor is superior, it is possible to state that if any Apple consumer has problems with his device after contact with water, as long as respected the limits of the IP67 certification, there is a solid argument to be presented to the Judiciary, in case the company refuses to carry out the exchange by its own will.
By law, the consumer has up to 90 days to claim a defective product. Some companies offer a greater warranty in the case of Apple the full one year warranty, that is, 90 days of legal warranty, plus 275 days of contractual warranty, which is offered free by the company and, of course, binding it to provide all services arising from manufacturing defects in this period.
Caio Nobre BrittoLawyer, specialist in Corporate and Tribute Law, post-graduated from the So Paulo Law School of Fundao Getlio Vargas. Dilettante of Apple products, either to monitor your day-to-day (Apple Watch), or to meet the changing demands (iPhone 6s). Not to mention your MacBook Air, which you work and play with daily.