*By Camila Taliberti and Paulo Brancher
In the recent years, there have proliferated cases before Brazilian and foreign courts where a certain person claims for the removal, de-indexation or non-disclosure of information about oneself in Google’s research results, invoking the so-called “right to be forgotten”.
According to a survey conducted by the Institute of Technology & Society of Rio – ITS Rio, between 2012 and 2016, the Courts of Rio de Janeiro, São Paulo, Paraná, Rio Grande do Sul, Paraíba and the Federal District, amounted to 114 cases that brought about the “right to be forgotten” in communication vehicles, including the Internet.(1)
The idea of a “right to be forgotten” emerged over 20 years ago in Europe, as a right to rectify, erase or block data when they are incomplete or inaccurate, as provided under Article 12 of Directive 95/46/EC of the European Parliament and of the Council, which addresses the protection of personal data.
However, the right to be forgotten earned great repercussion after the case “Mario Costeja González vs. Google”, tried in 2014 by the Court of Justice of the European Union. Mario Costeja González, a Spanish citizen, claimed for the removal of his name and personal data contained in two pages of the newspaper “La Vanguardia”, in which appears a 1998 advertisement regarding the sale of one of his properties in a public auction for the recovery of debts before the Spanish social security. In addition, he pleaded the Court to order Google to hide his personal data from the research results, in order to prevent indexing to La Vanguardia’s pages. In sum, the European Court’s understanding was that research tools, such as Google, are content providers that perform the treatment of personal data, and because of that must satisfy the claims for data removal as required by the Directive 95/46/CE. On the other hand, the pages of La Vanguardia were maintained, since the information published therein were legally justified and had the purpose of publicizing as much as possible the property’s sale in the public auction.(2)
Briefly, the European Court of Justice eventually compelled Google to receive requests for the de-indexation of European citizens’ personal information, and to determine which of those requests would be satisfied. Nowadays, Google de-indexes the research results for all users with an IP from the country of origin of the requests answered, within European Union. In other words: users located in Spain, for example, accessing the domain google.es, google.fr, google.it or even google.com, will not find those results.(3)
In Brazil, this ruling has concerned the legal community, for having the potential to limit freedom of speech and the right to information in the digital environment. The discussions were predominant in the sense that the “right to be forgotten”, as defined by the European Court of Justice, should not serve as a parameter for the treatment of cases in which the online right to be forgotten is raised before Brazilian courts.
Firstly, because this “right to be forgotten” is not set forth in the Brazilian legislation. In fact, this reference has served here to give a new name to the protection of personality rights, such as privacy, honor and image, through deletion of data, removal of content or exclusion (de-indexation) of search keys.(4)
Secondly, because the European Court of Justice has delegated to the research providers, rather than to the Judiciary Branch, the duty to judge, on a case-by-case basis, which fundamental right must prevail, whether user privacy or freedom of expression and public interest regarding the information maintained on the network.
This understanding goes against to what the Internet Bill of Rights (Law 12.965/2014) establishes. As a rule, it is up to the Judiciary Branch to analyze the requests for removal of content. In addition, to ensure freedom of expression and prevent censorship, the Internet provider may only be liable for damages arising from infringing content if it does not observe the court order that determines its removal.
Even prior to the Internet Bill of Rights, the Superior Court of Justice (STJ), in the trial of the case in which the Brazilian celebrity Xuxa Meneghel requested the removal of any research results with the expression “Xuxa pedophile”, had already declared that providers of research, such as Google, (i) is not liable for the content of the research results made by their users, (ii) cannot exert prior control of the content of research results made by each user, (iii) cannot be forced to eliminate from the system the results derived from the research of a certain term or expression, nor the results that point to a specific photo or text, regardless of the indication of the URL of the page where it is inserted.
Recently, already with the Internet Bill of Rights in force, STJ ruled on a similar case (5), in which the plaintiff pleaded for the de-indexation of her name from Google’s research results, since these would lead to pages containing nudity images, raising the right to be forgotten. Justice Nancy Andrighi reiterated her understanding from the Xuxa case and, when deciding on the application of the understanding adopted by the European Court of Justice, highlighted that forcing Google to de-index research results would be, in the Brazilian normative context, equivalent to assigning to it the function of a true “digital censor”, which will monitor what can or cannot be easily accessed by the general public without any legal basis.(6)
The Brazilian Supreme Court (STF) is expected to soon judge for the first time the “right to be forgotten” in the Extraordinary Appeal number 1,010,606, which became known as the “Aída Curi Case”. This is a lawsuit involving the TV show “Linha Direta Justiça” broadcasted by Rede Globo in 2004, which covered the tragic death of a young woman so called Aída Curi.
The plaintiffs (the victim’s brothers) have claimed compensation for moral damages, arguing that they have relived the pain from the past, and for material damage to the image, due to the commercial exploitation of Aida’s death, without the authorization of the living relatives. Finally, the plaintiffs argued that the program’s transmission violated the right to be forgotten.
Judging the case, STJ understood that accepting the right to be forgotten, with consequent indemnity to the plaintiffs, would constitute a disproportionately hinder the freedom of the press, if compared to the discomfort caused by the memory.
Although the Aída Curi’s case does not discuss online content made available on the Internet, STF’s understanding will certainly impact on the treatment of the right to be forgotten as a whole, affecting its attempts of application to an expanded universe of agents, such as printed and online newspapers, broadcasters and Internet service providers.(7)
In a country like Brazil, where democracy is still relatively recent, freedom of expression must be treated as a preferential freedom. As STF Justice Luís Roberto Barroso has rightly pointed out, “in order to properly exercise political rights, the rights of political participation, freedom of association, freedom of assembly, and the development of the personality itself, there must be freedom of expression, there must be free circulation of facts, opinions and ideas, so that everyone can participate fully in the public debate”.(8)
The adoption of a “right to be forgotten” under the European law standards would, in this sense, potentially prevent valuable constitutional rights that are essential for the exercise of citizenship.
*Respectively associate lawyer and partner of the Azevedo Sette Advogados
(1) ITS Rio. Dez Dilemas sobre o chamado Direito ao Esquecimento, p. 1. Available at https://itsrio.org/wp-content/uploads/2017/06/ITS-Rio-Audiencia-Publica-STF-Direito-ao-Esquecimento-Versao-Publica-1.pdf. Access on 07/21/2017.
(2) Full decision available at http://curia.europa.eu/juris/document/document.jsf?docid=152065&doclang=PT. Access in 07/20/2017.
(3) INTERNETLAB. As consequências globais de “esquecer”. Available at http://www.internetlab.org.br/pt/opiniao/3especial-as-consequencias-globais-de-esquecer/. Access on 07/22/2017.
(4) ITS Rio. Op. cit., p. 1.
(5) STJ, Special Appeal 1,316,921/RJ, Rel. Justice Nancy Andrighi, DJe 06/29/2012. Ful decision available at https://ww2.stj.jus.br/websecstj/cgi/revista/REJ.cgi/ITA?seq=1161904&tipo=0&nreg=201103079096&SeqCgrmaSessao=&CodOrgaoJgdr=&dt=20120629&formato=PDF&salvar=false
(6) STJ. AgInt on the Special Appeal nº 1,593,873/SP. Rel. Justice Nancy Andrighi. DJe 11/17/2016.
(7) ITS Rio. Op. cit, p. 2.
(8) STF. Direct Unconstitutionality Action 4.815. Vote of Justice Luís Roberto Barroso, p. 147.