LexisNexis

The perspective of the Brazilian Federal Supreme Court on the right to be forgotten

Thursday 24 June 2021

Fabio Alonso Vieira

Kestener, Granja & Vieira Advogados, São Paulo

fabio.vieira@kgvlaw.com.br

Carolina Barbosa de L Cunha V da Costa

Kestener, Granja & Vieira Advogados, São Paulo

carolina.costa@kgvlaw.com.br

Introduction

Would you like to remember all the moments and events of your life, including the ones where you felt defeated, embarrassed, humiliated or in pain? Everyone has something they would like to erase from their memories.

It is undeniable that living in the information era may make this difficult, considering that any event or fact may be recorded or registered by anyone and travels around the globe in a matter of seconds. Technology has played a fundamental role in increasing the speed of news, making it almost instantaneous and allowing for information to be accessible by anyone at any time- and for an indefinite period.

The right to be forgotten

For this reason, in the last few years, jurists from around the world have been discussing the right to be forgotten doctrine, which is the right that individuals may have to not be involuntarily reminded of painful, embarrassing or humiliating facts related to their past which are no longer in the public interest, in order to preserve their fundamental rights, such as dignity and privacy.

The Court of Justice of the European Union (CJEU), for example, ordered Google to withdraw links that related Spanish citizen Mario Costeja González to the auction of his property, which occurred due to his social security debts. Although the auction took place years ago, Mr González continued to be associated with the debt, as an edition of the newspaper La Vanguardia documenting the shorty was available on the internet. The CJEU based its decision on the right to control the exposure of private information and created the so-called ‘right to be forgotten’. Based on this precedent, search engines may be forced to remove data considered inappropriate or that are no longer relevant.

In Brazil, the discussion regarding the right to be forgotten gained traction in 2013, with the publication of Statement 531 of the VI Journey of Civil Law of the Judicial Studies Centre of the Federal Justice Council (CJF) which states that ‘the protection of the dignity of the human person in the information society includes the right to be forgotten’.

According to the CJF:

‘The right to be forgotten has its historical origin in the field of criminal convictions. It emerges as an important part of the ex-detainee’s right to re-socialization. It does not attribute to anyone the right to erase facts or rewrite history itself, but only ensure the possibility of discussing the use that is given to past facts more specifically the way and the purpose with which they are remembered’.

Soon after the publication of Statement 531, the 4th Panel of the High Court of Justice judged two cases related to the right to be forgotten. The first, was the case known as Aída Curi, in which the family of a victim of a crime (Aída Curi) which took place in Rio de Janeiro in 1958 claimed indemnification against a television station that recalled and re‑enacted Curi's murder decades after it took place.

The second case refers to the Candelária massacre, in which one of the individuals originally suspected of the crime but found not guilty also filed a lawsuit against a television station requesting indemnification due to the use of his name in a broadcast about the massacre. In this case, the 4th Panel of the High Court considered that the name of the suspect was not necessary to report the events of the massacre and, therefore, he was granted the right to be cut from the television station’s programme.

In these cases, the 4th Panel of the High Court of Justice decided that the information should not be kept in perpetuity, especially with regard to the conflict between the right to information and the right to be forgotten of those convicted and those acquitted in criminal proceedings. Based on these precedents, it was ensured that, as a rule, the right to be forgotten should prevail.

The right to be forgotten in these cases is a way of protecting a person’s dignity, as provided in the Brazilian Federal Constitution (CF/1988), and enforcing the rights of protection of privacy, image and honour of those involved in facts and information that have become public.

However, the right to be forgotten cannot be applied in a broad manner, as the protection of privacy cannot erase parts of history, nor can it conflict with the press’s right to disclose relevant facts and information of public interest, as it would be incompatible with Articles 5, IV, V, X, XII, XIV and 220 of the CF/1988, which ensure freedom of expression and speech, forbids censorship and form part of the basis of a democratic state.

Recently, the Brazilian Federal Supreme Court (STF) analysed the civil aspects of Extraordinary Appeal No 1.010.606 filed by Aída Curi’s family against the television station and, by majority of votes, decided to maintain the High Court’s understanding that:

‘It is incompatible with the CF/1988 the idea of a right to be forgotten, thus understood as the power to prevent, due to the passage of time, the disclosure of facts or data that are true and lawfully obtained and published in analogue or digital media. Any excesses or abuses in the exercise of freedom of expression and information must be analysed on a case-by-case basis, based on the constitutional parameters – in particular, those related to the protection of honor, image, privacy and personality in general – and those provided in specific legal provisions of the criminal and civil legal framework’.

The Brazilian Federal Constitution, as stated by the reporting Minister Dias Toffoli, is a ‘unitary system of rules and procedures’, in which the interpreter has to ‘harmonise the spaces of tensions between the norms of constitutional nature’. In the Aída Curi’s case, the principles analysed were freedom of expression versus privacy and data protection. Furthermore, as stated by Minister, the right to freedom of expression must always tend to harmonise with other rights, so that the individual’s privacy is enshrined without sacrificing free communication.

This means that individuals are entitled to have their rights to personality and personal data protected. The state is obligated to ensure the protection of these fundamental rights in public and private. However, the protection of these rights cannot erase part of the history, nor can it conflict with the freedom of expression and the press’s right to disclose truthful and relevant facts of public interest. The right to be forgotten may never be analysed from a generic perspective - it must be linked to a certain event or facts and considered on a case-by-case analysis.

Furthermore, while the General Data Protection Regulation provides the right to erasure or right to be forgotten, the Brazilian Data Protection Law (LGPD) does not. The LGPD sets out in Articles 15 and 16 that personal data shall be deleted after processing, except in specific cases, where the maintenance is permitted to comply with a legal or regulatory requirement. It is a mere right to erasure and not a right to be forgotten.

Conclusion

The legal framework that governs the Brazil is undergoing various transformations, due to the development of new technologies, the recognition of new values, the elevation of certain rights, such as informational self-determination, and because of additional challenges that are presented when analysing two or more consecrated principles or fundamental rights, as provided herein.

In this sense, the STF has shown that it is prepared to face these challenges head-on and understand that for the right to be forgotten, each case shall be analysed individually to evaluate the historic and truthful value of the information. However, it is likely that when there is historical or truthful information that may be of public interest, this information shall remain available to all, based on the principles of freedom of expression and freedom of the press as set forth in the CF/1988.