Horizontal effect of fundamental rights: platform terms of use in são paulo state court jurisprudence

Abstract

This article examines the civil liability of digital platforms, with particular emphasis on Facebook and Instagram, in cases involving the unilateral deletion and suspension of user accounts, analyzing the limits of private autonomy in light of the theory of the horizontal effect of fundamental rights and contemporary legal pluralism. The methodology consisted of bibliographical and documentary research, articulating constitutional doctrine on human dignity and the protection of personality in the virtual environment with legal pluralism theory, particularly regarding the production of private norms by digital platforms through their Terms of Use. The study focused on an analysis of recent case law issued over the past two years by the Tribunal de Justiça do Estado de São Paulo (Court of Justice of the State of São Paulo), identifying the consolidation of precedents that mitigate the automatic enforcement of Terms of Use when they conflict with constitutional guarantees. The findings indicate that the São Paulo Court has recognized that such contractual instruments constitute genuine private normative microsystems, whose validity and effectiveness must be reconciled with the Federal Constitution and the Consumer Protection Code.