NET had misleading advertising because it provided broadband at a much lower speed than promised by marketing, decided the STJ (Superior Justice Tribunal). Customers can cancel the service, without penalty of termination, if the internet is very slow – this goes for any operator. The judicial process has been running for almost ten years.
The Public Ministry of Santa Catarina (MPSC) opened a collective consumer action in 2009 accusing NET of misleading advertising. The marketing pieces did not inform the guarantee of minimum speed. At the time, Anatel only required an instantaneous transmission rate of 10%: that is, a 10 Mb / s plan should deliver at least 1 Mb / s in an immediate test.
That rule has become stricter since then. Today, Anatel requires at least 40% at instant speed, and at least 80% at average speed. For example, a 10 Mb / s plan should achieve 4 Mb / s or more in an immediate test; and fluctuate at least 8 Mb / s throughout the month.
Slow Internet can be canceled without penalty
The case had first and second instance decisions. NET was required to disclose the minimum speed guarantee (10% at the time, 40% today) in its advertisements, contracts and service orders.
And, if the network does not reach this minimum speed, the customer can cancel broadband at no charge. This is true not only for NET, but for all consumers in the same situation on other operators. The daily fine is R $ 5,000 in case of non-compliance.
NET does not need to provide 100% speed
NET appealed and the case ended up in the STJ. The rapporteur, Minister Nancy Andrighi, decided that there was misleading advertising by default: that is, the operator induced the consumer to contract the Internet without giving the appropriate information (the minimum guarantee of speed).
She also upheld the decision to cancel without penalty. “It is true that the consumer may regret hiring a service that has a minimum percentage of speed guarantee that was not informed and that he does not like”, writes Andrighi.
However, the STJ minister believes that NET should not be obliged to supply 100% of the speed because it warned: “the maximum rated speeds are subject to variation due to technical limitations of the internet”. Thus, the customer could not assume that he would always have 10 Mb / s when contracting a 10 Mb / s plan, for example.
STJ’s Third Panel rejected NET’s appeal unanimously. The operator says, in a statement to the Technology: “Although the details on speed were in the service contract, it was understood that the communication should have the same level of detail”. She points out that the decision involves two isolated cases in Santa Catarina, and says she has improved her advertising since then.