Decision against Mercado Bitcoin places new jurisprudence on the path of Brazilian brokerages.
A client of the brokerage Mercado Bitcoin who lost R$ 200,000 in his account on the platform filed a request with the Superior Court of Justice (STJ) seeking to acknowledge evidence in the process, given that he lost all his value due to a hacker attack.
In court, the investor argued that the hacker accessed his account with login, password, and even two-factor authentication. But in the originating court, justice had understood that the fault lay solely with the injured investor.
The case judged by the STJ at the end of May, which granted a favorable decision to the investor, ended up in the Jurisprudence Report No. 853. The rapporteur of the case is Minister Maria Isabel Gallotti, who was unanimously supported by the other ministers of the Fourth Panel.
“The platforms intended for cryptocurrency transactions are objectively liable for fraudulent transactions when it is verified that the transfer of bitcoins occurred through the use of login, password, and two-factor authentication,” says the highlight of the jurisprudence report from the STJ.
“Mercado Bitcoin is a financial institution authorized to operate even by the Central Bank of Brazil,” said the rapporteur minister.
The justice of the originating court even recognized that the plaintiff in the case against Mercado Bitcoin had neglected his security, being the target of a hacker attack that led to his personal information being taken and then used to drain his balance at the cryptocurrency brokerage.
But at the STJ, Minister Gallotti was clear in analyzing that there is jurisprudence for financial institutions. In her decision, she recalled that Mercado Bitcoin even has the approval of the Central Bank of Brazil to operate.
“In this context, it should be noted that the Superior Court of Justice understands that 'financial institutions are objectively liable for damages caused by internal fortuitous events related to frauds and crimes committed by third parties in the scope of banking operations' (Summary 479 of the STJ). Therefore, the brokerage for the intermediation of buying and selling cryptocurrencies is a financial institution, included in the list of authorized, regulated, and supervised institutions by the Central Bank of Brazil - BACEN (Law No. 4,595/1964, art. 17),” said the minister.
Decision holds the brokerage responsible for the transfer of bitcoins from the client.
In analyzing the appeal, the rapporteur minister also stated that Mercado Bitcoin failed to present an important piece of evidence in the process. Furthermore, she said that even with the evidence, it would still be the platform's fault for the error and went on to criticize the security of its system.
“In this case, the brokerage did not present the email confirming the transaction, and this evidence was essential to absolve it of responsibility for the disappearance of the cryptocurrencies. Even if it were admitted that there was an invasion by third parties (hackers), it would not be considered an external fortuitous event capable of relieving the financial institution of responsibility. Indeed, if the platform does not have adequate security to combat cyber attacks, the responsibility for this lies with it, and not with its clients, users of the platform,” declared the rapporteur.
Thus, the court decided that the fault lies solely with the platform for the undue withdrawal of bitcoin from its client's account. In the video below, the vote of the Fourth Panel is still available to interested parties.