In times of "overinformation" and an increasingly digital society, where a quick acess in a search site can lead to any content anywhere in the world, discussions involving the right to be forgotten – i.e., the withdrawal of personal information from websites and mass media – and its (in)compatibility with the right to freedom of the press are increasingly complex.
The discussions gained emphasis on the world legal stage in 2014, with an important precedent set by the Court of Justice of the European Union (EU) in a case involving the right of a person to have his name excluded from searches made through websites that related him to journalistic articles that, although reporting true facts, would be causing damage to his personal life.[1]
According to this precedent, the European Court has recognised the right of an individual to have his personal data erased from the Internet.[2]
In Brazil, due to the absence of specific legislation, the debate on the right to be forgotten has been outlined by the Higher Courts.
In December 2021, the Third Panel of the Superior Court of Justice (STJ) concluded the trial of Special Appeal 1,961,581/MS, under the rapporteurship of Minister Nancy Andrighi. The case had as background the suitability or not, based on the institute of the right to be forgotten, of imposing on mass media the obligation to exclude journalistic articles about the practice of crime from which the defendant was subsequently acquitted.
Applying the understanding signed by the Supreme Federal Court (STF) in a trial in February 2021 (Theme 786), it was understood that the right to be forgotten, because it is incompatible with the Brazilian legal system, does not justify the imposition of the obligation to exclude articles published in the media, provided that the facts in them do not go beyond the limits of the right to freedom of the press.
The STJ granted the special appeal for considering that the right to freedom of the press provided for in Article 220, §1, of the Brazilian Federal Constitution was not exercised with abuse. For the rapporteur minister, although the press is not absolutely linked to the disclosure of uncontroversial facts, there must be a diligent and careful action both in the investigation and in the disclosure itself, in order to meet, at least, the requirement of verisimilitude.
Not only that but in addition to meeting the requirements of veracity and relevance, according to which the media must provide information relevant to social interaction, journalistic activity is committed to safeguarding the rights of personality, that is, it cannot, under any circumstances, be exercised with the objective of "defaming, insulting or slandering".
For the ministers of the Third Panel of the STJ, the right to freedom of the press is the rule and can only be mitigated when the content conveyed is untrue, not relevant to social interaction and/ or violates the rights of the personality of the individual subject of the news. In this sense, despite the fact that the defendant was subsequently acquitted of the crime for which he was accused, there was no doubt about the veracity and public interest of the information disclosed at the time (2009) by the applicant, as it was in fact related to the criminal sphere. Furthermore, the defendant did not claim at any time that the news was intended to offend his honor.
From this trial, the Third Panel of the STJ updated the position of that Court, based on the understanding of the STF, because, in previous judgments, the Fourth and Sixth Panels had already granted validity to the right to be forgotten, conceptualizing it as "(...) right not to be remembered against his will, specifically with regard to discreditable facts, of a criminal nature, in which he was involved, but latter acquitted."[3]
For the Higher Courts, therefore, the preponderant factor for favoring or not the right to be forgotten is the fact that the exercise of the right to freedom of the press has been considered legitimate or illegitimate, depending on whether or not the rights of the party's personality are violated.
It should also be highlighted that the approaches of the Third Panel of the STJ and the STF differ from that adopted by the Court of Justice of the EU, which in itself demonstrates the complexity of the issue and indicates that discussions involving the right to oblivion will continue to be brought to Brazilian Courts, despite the legal incompatibility pointed out by the STF between this right and the Brazilian Federal Constitution.
In any case, it is unquestionable the advance of the theme in the Brazilian Judiciary and its relevance in our society, to the extent that, regardless of the fact that the right to freedom of the press is not considered absolute, it must prevail whenever exercised with respect to the principles of ethics and good faith. What remains now is to follow how the Legislative Branch will behave in the face of the changes that occur at all times in the information society, increasingly dynamic, and whether these changes will force our higher courts to review the application of the institute of the right to be forgotten.
[1] The news linked to the name of the plaintiff concerned the real estate auction due to non-payment of taxes.
[2] Conjur site - Right to erase data and the decision of the European court in the Case of Google Spain
[3] Habeas Corpus 256,210/SP, Minister Rapporteur Rogerio Schietti Cruz, Sixth Panel, judged on 3.12.2013; EDcl on REsp 1121199/SP, Minister Rapporteur Luis Felipe Salomão, Fourth Panel, judged on 27.3.2014.
