Abstract
Within the various aspects of the online privacy fender, the discussions about “right to be forgotten”, understood as the opposition to a public memory, of past events, outdated and dissonant characteristics in relation to their contemporary personality aspects. In the digital environment, it reaches the storage and public availability of decontextualized data and information, through news in a content server, mention in database, return in a search provider or even a post in social network, which represents a form of permanent and oppressive memory of the subject’s current personality. In Brazil, the Superior Court of Justice (STJ) already had the opportunity to address the issue of the right to be forgotten on the Internet; the arguments demonstrate the preponderance of the right to information and communication, evoking the forgetfulness only when the subject can detach himself from the recounting of history and this does not prevent rememorating of socially relevant fact. The STJ removed the right to be forgotten cases of noncontractual liability for the conduct of search providers, but kept it in front of the application providers, adopting the so-called “notice and take down” regime. It is therefore perceived that the right to to be forgotten, especially in the face of the challenges of the Internet, imposes a critical reflection that aims the guarantee of effective protection of the constitutionally protected values.
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- 1.
https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/G12/153/25/PDF/G1215325.pdf?OpenElement. Accessed 10 Feb 2017.
- 2.
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/068/78/PDF/G1506878.pdf?OpenElement. Accessed 10 Feb 2017.
- 3.
On the theme, see: Prigogine (2011).
- 4.
On the theme, see: Perlingieri (2008).
- 5.
All persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property, on the following terms:
(…)
IX – the expression of intellectual, artistic, scientific, and communications activities is free, independently of censorship or license;
X – the privacy, private life, honour and image of persons are inviolable, and the right to compensation for property or moral damages resulting from their violation is ensured;
XI – the home is the inviolable refuge of the individual, and no one may enter therein without the consent of the dweller, except in the event of flagrante delicto or disaster, or to give help, or, during the day, by court order;
XII – the secrecy of correspondence and of telegraphic, data and telefone communications is inviolable, except, in the latter case, by court order, in the cases and in the manner prescribed by law for the purposes of criminal investigation or criminal procedural finding of facts.
- 6.
Article 1. The Federative Republic of Brazil, formed by the indissoluble union of the states and municipalities and of the Federal District, is a legal democratic state and is founded on:
(…)
III - the dignity of the human person.
- 7.
“The expression information society appeared in Europe, in the international conference of 1980, where the European Community hold a meeting of intellectuals to assess the future of a new society called as such, in view of the regulation of the freedom of circulation of services and measures for implementation of access to the goods and services by the Member States” (Martins 2014, pp. 3–4).
- 8.
“Information Society” is not a technical concept: is a slogan. It would be better to speak about a communication society, since what is intended to push is the communication, and only in a much wide sense all messages can be qualified as information” (Ascensão 2002, p. 71).
- 9.
Sen (1999).
- 10.
Warren and Brandeis (1890), pp. 193–220.
- 11.
Schreiber (2013), pp. 135–137.
- 12.
Bucar (2013), p. 8.
- 13.
Bucar (2013), p. 8.
- 14.
Bucar (2013), p. 9.
It is also worth mentioning, as a possible basis for the right to be forgotten, the establishment, in Brazilian criminal law, of the right of the convicted person to dissociate himself/herself from past acts with a view to guarantee his/her resocialization. Finally, but not least, Law 12965, of April 23, 2014, known as the Civil Rights Framework for the Internet and its possible connection with the right to be forgotten. This happens because art. 7, sub. X of said law ensures to the Brazilian Internet user “the definitive exclusion of the personal data he/she may have provided to a certain Internet application, upon its request, at the expiry of the relationship between the parties, except the hypotheses of obligatory custody of records provided for in this law”.
In view of the legal provision, however, its interpretation is disputed in the doctrine as a modality of right to be forgotten, since it suggests being most proper a keeping of personal data than a circulation of right to intend the exclusion, deletion or even decoupling of past information out of context.
About the theme, see: “However, it was in the Criminal Law that the right to be forgotten mostly developed, when the convicted person had ensured the right to be released from the memory of the criminal act he/she practiced, in order to make his/her re-socialization effectively possible. In addition, such right has a constitutional status under the basis of the prohibition of penalty for life (art. 5, III, and XLVII, b of the Federal Constitution/1988); that is, the perennial remembrance of the conviction would be an effect of the penalty that would follow the convicted person at eternum. Therefore, the Sentence Execution Act (Law 7210/1984) provides, in its art. 202, that the criminal facts shall not appear in the police report of the convicted person, except in case he/she performs a new criminal infringement or other cases provided for in law. In other words, the convicted person, after having complied with the penalty, is entitled to have those facts forgotten. In addition to such provision, art. 93 of the Criminal Code and art. 748 of the Criminal Procedure Code bring such right to the convicted person, as a presupposition to his/her re-insertion in the society” (de Lima 2015, pp. 511–543).
- 15.
The Amnesty Law granted, pursuant to its art. 1, “amnesty to all those who, during the period between September 2, 1961 and August 15, 1979, committed political or similar crimes, electoral crimes, had suspended political rights and the employees of the Direct and Indirect Management, foundations linked to the government, the employees of the Legislative and Judiciary Branches, the Military and the trade union directors and representatives, punished based on Institutional and Complementary Acts.” The period referred to in the law was marked by the occurrence of a Military Dictatorship in Brazil, which historical context may be better known in the series: Gaspari (2002a, b, 2003, 2004).
- 16.
REsp (Special Appeal) 1334097/RJ, Judge Rapporteur LUIS FELIPE SALOMÃO, Fourth Panel, judged on 05/28/2013. Available at: https://ww2.stj.jus.br/websecstj/cgi/revista/REJ.cgi/ITA?seq=1239004&tipo=0&nreg=201201449107&SeqCgrmaSessao=&CodOrgaoJgdr=&dt=20130910&formato=HTML&salvar=false.
- 17.
REsp 1335153/RJ, Judge Rapporteur Minister LUIS FELIPE SALOMÃO, FOURTH PANEL, judged on 05/28/2013. Available at: https://ww2.stj.jus.br/websecstj/cgi/revista/REJ.cgi/ITA?seq=1237428&tipo=0&nreg=201100574280&SeqCgrmaSessao=&CodOrgaoJgdr=&dt=20130910&formato=HTML&salvar=false. It is worth to be mentioned that the case involving the murder of Aida Curi was, after the judgement by the Superior Court of Justice, submitted to the Federal Supreme Court, which will analyze if the aforementioned decision infringed the Constitution. Such judgment has not yet begun.
- 18.
Sarmento (2016), p. 230.
- 19.
REsp 1316921/RJ, Judge Rapporteur Minister NANCY ANDRIGHI, THIRD PAINEL, judged on 26/06/2012. Available at: https://ww2.stj.jus.br/websecstj/cgi/revista/REJ.cgi/ITA?seq=1161904&tipo=0&nreg=201103079096&SeqCgrmaSessao=&CodOrgaoJgdr=&dt=20120629&formato=HTML&salvar=false.
- 20.
REsp 1593873/SP, Judge Rapporteur Minister NANCY ANDRIGHI, THIRD PANEL, judged on 11/10/2016. Available at: https://ww2.stj.jus.br/websecstj/cgi/revista/REJ.cgi/ITA?seq=1553533&tipo=0&nreg=201600796181&SeqCgrmaSessao=&CodOrgaoJgdr=&dt=20161117&formato=HTML&salvar=false.
- 21.
Interpreting the precedents, Carlos Affonso Souza and Chiara Spadaccini de Teffé declare: “According to the judgments on the subject in the STJ, it is possible to state that the following precedent has been established: a. the search engines are not liable for the content of the results of searches carried out by their users on their platform nor can they be required to exercise prior control over such results, since they only show contents available on the web that relate to the expressions selected by the users themselves and entered into the search; b. the person who feels damaged should file a claim against the person directly responsible for any damage caused, that is, the one who actually published the illegal content in his/her website and not the search engine that indexes the information freely found on the web; and c. taking into consideration the rights involved and the potential risk of infringement of each one of them, the assurance of freedom of information shall prevail, especially considering that the Internet represents important means of communication today” (Souza and Teffé 2018).
- 22.
Costa (2013), p. 204.
- 23.
Bucar (2013), p. 5.
- 24.
Bucar (2013), p. 5.
Indeed, those criticisms have recently received some repercussion in court decisions, but have not consolidated an understanding different from the reported one. Nevertheless, it is worth mentioning the judgment of Special Appeal 1,660,168, which decision, by majority vote, was issued to ensure the removal of the name of the complainant from news that involved her in a case of fraud in public contest—from which unlawful act she was found not guilty. In this case, whenever the name of the plaintiff was searched, the first results were related to the news about the alleged fraud. Thus, the decision ordered that the search engines should stop showing such news when the search was made only by the name of the applicant, while maintaining the information of the websites when the search was made for the fact itself. This is the abstract of the decision: “SPECIAL APPEAL. CIVIL LAW. ACTION FOR OBLIGATION TO DO. 1. OMISSION, CONTRADICTION OR DIMNESS. ABSENCE. 2. EXTRA PETITA JUDGMENT. NOT CONFIGURED. 3. SEARCH ENGINE IN THE INTERNET. PROTECTION OF PERSONAL INFORMATION. LEGAL POSSIBILITY OF THE PETITION. NO LINK BETWEEN NAME AND RESULT OF SEARCH. FACT PECULIARITIES. CONCILIATION BETWEEN INDIVIDUAL RIGHT AND COLLECTIVE RIGHT TO INFORMATION. 4. DAILY FINE APPLIED. EXHORBITANT INITIAL VALUE. EXCEPTIONAL REVISION. 5. PARTIALLY GRANTED SPECIAL APPEAL. 1. It is discussed the possibility of determining the breach of the link established by search application providers in the Internet between the name of the damaged party, used as exclusive search criterion, and the news appointed in the results. 2. The Court of origin has faced all issues submitted by the parties, deciding on the strict limits of the demand and refusing, in an express and coherent way, all the bases that formed the free conviction of the Court. 3. The precedents of this Higher Court have a reiterated understanding in order to exclude the responsibility of Internet search engines for the presented search results, recognizing the impossibility of assigning to them the role of censor and imposing on the damaged party the directing of its claim against content providers, responsible for the provision of undue content on the internet. Precedents. 4. There are, however, very exceptional circumstances in which it is necessary the punctual intervention of the Judiciary Branch to cease the link created in the databases of search engines between personal data and search results that are not relevant for the public interest to information, either by the eminently private content or by the elapsing of time. 5. In these exceptional situations, the right to privacy and to be forgotten, as well as the protection of personal data, should prevail in order to allow the involved persons to continue their lives with reasonable anonymity, with the discrediting fact not being frequently recalled and perpetuated by automated search systems. 6. The breach of the said link without the exclusion of the news also makes compatible the individual interest of the holder of personal data and collective interest of access to information, insofar as it makes it possible to locate the news to those who direct their search by providing search arguments related to the fact reported, but not to those who exclusively seek the personal data of the protected individual. 7. In the present case, after more than a decade since the reported fact, when the name of the applicant is informed as the exclusive search criterion, the first presented result remained a link to news of his possible involvement in a discrediting, but unproven fact, despite of the existence of a lot of subsequent information about him available on the worldwide web. 8. The arbitration of daily fine should be reviewed whenever its initial value is clearly disproportional, is negligible or excessive, as is the case hereof. 9. Partially granted special appeals.”
- 25.
Article 21. The Internet application provider that makes available content generated by third parties will be held liable for the violation of the privacy resulting from the disclosure, without the permission of its participants, of images, videos or other material containing scenes of nudity or private sexual acts when, upon receipt of notification by the participant or his/her legal representative, it does not promote, in a diligent manner, within the scope and technical limits of its service, the unavailability of such content.
- 26.
Souza and Lemos (2017).
- 27.
Souza and Lemos (2017).
- 28.
REsp 1568935/RJ, Judge Rapporteur Minister RICARDO VILLAS BÔAS CUEVA, THIRD PANEL, judged on 04/05/2016. Available at: https://ww2.stj.jus.br/processo/revista/documento/mediado/?componente=ITA&sequencial=1501300&num_registro=201501011370&data=20160413&formato=HTML.
- 29.
Such understanding, moreover, is in line with Resolution 20/8, adopted on 16 July 2012, by the United Nations Human Rights Council about the promotion, protection and enjoyment of human rights on the Internet in which it “affirms that the same rights that people have offline must also be protected online, in particular freedom of expression” and Resolution 28/16, adopted on 1 April 2015, which provides that equal rights offline and online include the right to privacy.
- 30.
CIVIL AND CONSUMER. INTERNET. CONSUMER RELATIONSHIP. APPLICATION OF THE CONSUMER DEFENSE CODE. SERVICE FREE OF CHARGE. INDIFFERENCE. CONTENT PROVIDER. PRIOR INSPECTION OF THE CONTENT OF THE INFORMATION POSTED ON THE WEBSITE BY THE USERS. UNNECESSITY. OFFENSIVE CONTENT MESSAGE. NONPECUNIARY DAMAGE. RISK INHERENT TO THE BUSINESS. INEXISTENCE. AWARENESS OF EXISTENCE OF UNLAWFUL CONTENT. IMEDIATE REMOVAL. DUTY. AVAILABILITY OF MEANS FOR IDENTIFICATION OF EACH USER.
DUTY. IP NUMBER REGISTRATION. SUFFICIENCY. 1. The commercial exploration of the Internet subjects the consumer relationships arising therefrom to Law No. 8.078/90. 2. The fact that the service provided by the internet service provider is free of charge does not eliminate the consumer relationship, since the meaning of remuneration, set forth in art. 3, 2nd paragraph of the Consumer Defense Code shall be wide, in order to include the supplier’s indirect gain. 3. The prior inspection, by the content provider, of the content of the information posted on the web by each user is not an activity intrinsic to the provided service, therefore it can not be considered as in failure, according to art. 14 of the Consumer Defense Code, the website that does not examine and filter the data and images included therein. 4. The nonpecuniary damage resulting from messages with offensive content included in the website by the user does not constitute a risk inherent to the activity of the content providers, therefore the strict liability provided for in art. 927, sole paragraph, of the Civil Code/02 does not apply. 5. When informed that a text or image has unlawful content, the provider must act vigorously, removing the material immediately, under penalty of being jointly and severally liable with the direct author of the damage, due to the omission practiced. 6. By offering a service through which users are allowed to freely express their opinion, the content provider must be careful to provide means for identifying each of those users, preventing anonymity and assigning to each manifestation a certain and established author. From the point of view of the average diligence expected from the provider, it must take the measures that, according to the specific circumstances of each case, are within its reach for the individualization of the website users, under penalty of subjective liability for fault in omittendo. 7. The initiative of the content provider to maintain a channel for complaints in a virtual social network hosting website is commendable and consistent with the expected position in the provision of this type of service—to maintain means that allow identification of each user (and any abuse practiced by it)—but the mere provision of the tool is not enough. It is critical that there is effective adoption of measures to investigate and settle the complaints made, keeping the complainant informed of the measures taken, otherwise it will create only a false sense of security and control. 8. Special appeal not granted. (REsp 1308830/RS, Judge Rapporteur Minister NANCY ANDRIGHI, THIRD PANEL, judged on 05/08/2012, DJe 06/19/2012).
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Analyzed Decisions
REsp 1308830/RS, Judge Rapporteur Minister NANCY ANDRIGHI, THIRD PANEL, judged on 05/08/2012. Available at: https://ww2.stj.jus.br/websecstj/cgi/revista/REJ.cgi/ITA?seq=1142916&tipo=0&nreg=201102574345&SeqCgrmaSessao=&CodOrgaoJgdr=&dt=20120619&formato=PDF&salvar=false
REsp 1316921/RJ, Judge Rapporteur Minister NANCY ANDRIGHI, THIRD PANEL, judged on 06/26/2012. Available at: https://ww2.stj.jus.br/websecstj/cgi/revista/REJ.cgi/ITA?seq=1161904&tipo=0&nreg=201103079096&SeqCgrmaSessao=&CodOrgaoJgdr=&dt=20120629&formato=HTML&salvar=false
REsp (Special Appeal) 1334097/RJ, Judge Rapporteur LUIS FELIPE SALOMÃO, FOURTH PANEL, judged on 05/28//2013. Available at: https://ww2.stj.jus.br/websecstj/cgi/revista/REJ.cgi/ITA?seq=1239004&tipo=0&nreg=201201449107&SeqCgrmaSessao=&CodOrgaoJgdr=&dt=20130910&formato=HTML&salvar=false
REsp 1335153/RJ, Judge Rapporteur Minister LUIS FELIPE SALOMÃO, FOURTH PANEL, judged on 05/28/2013. Available at: https://ww2.stj.jus.br/websecstj/cgi/revista/REJ.cgi/ITA?seq=1237428&tipo=0&nreg=201100574280&SeqCgrmaSessao=&CodOrgaoJgdr=&dt=20130910&formato=HTML&salvar=false
REsp 1568935/RJ, Judge Rapporteur Minister RICARDO VILLAS BÔAS CUEVA, THIRD PANEL, judged on 04/05/2016. Available at: https://ww2.stj.jus.br/processo/revista/documento/mediado/?componente=ITA&sequencial=1501300&num_registro=201501011370&data=20160413&formato=HTML
REsp 1593873/SP, Judge Rapporteur Minister NANCY ANDRIGHI, THIRD PANEL, judged on 11/10/2016. Available at: https://ww2.stj.jus.br/websecstj/cgi/revista/REJ.cgi/ITA?seq=1553533&tipo=0&nreg=201600796181&SeqCgrmaSessao=&CodOrgaoJgdr=&dt=20161117&formato=HTML&salvar=false
Resp 1660168/RJ, Judge Rapporteur. for Appellate Decision Minister MARCO AURÉLIO BELIZZE, THIRD PANEL, judged on 05/08/2018. Available at: https://ww2.stj.jus.br/websecstj/cgi/revista/REJ.cgi/ITA?seq=1628798&tipo=0&nreg=201402917771&SeqCgrmaSessao=&CodOrgaoJgdr=&dt=20180605&formato=PDF&salvar=false
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Gonçalves, M.A.R. (2020). The Right to Be Forgotten According to the Brazilian Precedents. In: Werro, F. (eds) The Right To Be Forgotten. Ius Comparatum - Global Studies in Comparative Law, vol 40. Springer, Cham. https://doi.org/10.1007/978-3-030-33512-0_13
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