Abusividade contratual na era digital : aspectos jurídicos e reflexos da LGPD.

Abstract

Contracts, in Brazilian legal order, are governed by the Civil Code and may be protected, jointly, by the Brazilian Consumer Protection Code when there is a consumer relationship. Because the consumer is the most vulnerable party in this legal relationship, greater care is needed to avoid possible abuses and/or excessive onerosity in these contracts. With the advancement of technology, the digital age has adapted and introduced new ways of doing business, including contracts. The concern regarding this new system revolves around the protection of consumers, and their data, and the inexistence of territorial barriers. Thus, the protection of personal data arises in the context of the information society as a way to protect the privacy and personality of individuals against the potential risks associated with the processing of personal data. Based on this context, this paper, using deductive and bibliographical research, intends to approach the abusive nature of contracts signed in the digital environment through an analysis of the legal aspects and the effects of the General Law of Personal Data Protection, aiming at understanding the relationship of abuse existing in these contracts. In these terms, the problem to be faced consists in verifying whether the changes brought by the LGPD are capable of protecting users from clauses imposed in electronic contracts that may be considered abusive. Thus, to reach the bibliographical research, doctrines, published scientific articles, jurisprudence, and specific legislation, such as the General Law of Protection of Personal Data, were interpreted. To this end, the work begins with a brief study of contracts and contractual relations in Brazilian Civil Law and the Brazilian Consumer Protection Code, presenting the principles that govern consumer relations. Next, it deals with the dynamics of legal relations and contracts in the digital era, presenting the categories of electronic contracts, the adhesion contracts and discussing the initial milestone of contractual data protection. Finally, it addresses the application of LGPD and the abusiveness in digital contracts, discussing the obstacles faced by the law concerning these contracts, concluding that this legislation is extremely important in terms of the legal protection of users' data in intense sharing environments. However, that means of security must be created for contractual relations in the virtual world, especially concerning the guarantee of the acts performed. Since trust is the foundation of any relationship between people and plays an essential role in the expectations that are created between the parties when they assume the obligations adjusted in the contract, thus establishing a contractual link. This is because the consumer's vulnerability in this digital environment requires effective action from consumer protection and defense agencies to curb abusive practices and ensure compliance with the principles of good faith, vulnerability, and balance in consumer relations.