The right to be forgotten – which involves the withdrawal of personal information from websites and mass media – is a contemporary theme and the subject of intense debate in the world legal stage. It bumps into several prerogatives provided for in the Brazilian legal system and was recently considered incompatible with the Federal Constitution by the Supreme Federal Court (STF) – Theme 786.[1]

Currently, the internet is present in people's daily lives in such a deep-rooted way that it is difficult to imagine that, until a few decades ago, research was done in encyclopedias, communication was mainly through telephone calls and news was broadcast basically in printed newspaper, radio or television.

For better or for worse, today we are one or a few clicks of any person and any information. For no other reason, much has been said about the Streisand effect and its implications for the right to be forgotten.

The expression arose in the United States after the lawsuit filed by actress and singer Barbra Streisand against photographer Kenneth Adelman of Pictopia agency, due to the disclosure of several aerial photographic records of the California coast on a website. In addition to compensation for moral damages for alleged violation of her privacy, Streisand required the removal of the satellite image of her residence, which was among the photographs disclosed.[2]

Contrary to what the actress intended, the action ended up increasing its exposure. Before the lawsuit, the photo of her residence had been accessed only six times – and, according to media reports, of the six accesses, two were made by her lawyers. With the notoriety that the case gained after the lawsuit was filed, the image went viral, and the site received approximately 420,000 hits in a month.[3]

In this context, the Streisand effect "(...) can be understood, in brief synthesis, as the situation in which, from an attempt to censor certain information or artistic expression of the market of ideas, the initiative results in the vast replication of said content, usually through media and websites, due to the dynamism in the exchange of information between its users".[4]

In Brazil, several cases suffered the Streisand effect, which called into question the effectiveness of the right to be forgotten even before its unconstitutionality was declared by the Supreme Federal Court.

In June 2012, the Superior Court of Justice (STJ), under the rapporteurship of Minister Nancy Andrighi, concluded the trial of the Special Feature 1,316,921/RJ, brought by Google Brasil Internet Ltda. (Google) against the presenter Xuxa Meneghel. The purpose of the appeal was to analyze the suitability or not of imposing the obligation to restrict the results obtained in searches in google's system that associated the presenter with pedophilia, for her performance in the film “Amor Estranho Amor” (1982).[5]

According to the STJ, considering the existing consumer relationship between users and research providers, governed by the Law 8,078/90 (Consumer Protection Code - CDC),[6] Google's liability should be limited to the nature of the activity developed, intended exclusively to facilitate the location of information, regardless of its content.

Thus, the court recognized that it is not feasible to impose a discretionary judgment on the research providers and force them to exclude the results obtained in searches conducted with a certain word, as intended by the presenter. To reach this understanding, the ministers considered:

  • the infeasibility of establishing objective criteria of limitations to research – carried out by a system whose reasoning capacity is limited when compared to the creativity of the human being to circumvent any restrictions;
  • that eventual censorship would prevent access to any website that mentions the forbidden term (or expression), regardless of its legal/offensive content or not – which would consequently repress the constitutional right to information.

However, it is very common to have greater repercussion on social networks and websites when the person seeks judicial protection and confidentiality, in a clear unfolding of the Streisand effect. In the tool Google Trends, you can verify that the search for the terms that the presenter tried to deindex increased considerably during the month of the trial of the process (June 2012), passing the platform classification from 1 to 43 points.[7]

In a more recent case (December 2019), when assessing the Complaint 38.201/SP, proposed by journalist Ulysses Campbell, author of the book “Suzane: assassina e manipuladora”,[8] the Supreme Federal Court understood that the preliminary decision that suspended the publication, disclosure and commercialization of the unauthorized biography of Suzane Von Richtofen, sentenced for the murder of her parents, would offend the constitutional prerogative of freedom of expression under the negative bias.[9]

At the time, Minister Alexandre de Moraes recorded that the fence to prior censorship, however, would not exempt the journalist from being liable for any offenses to the personality rights of the parricida generated with the publication of the literary work, guarded by the right to freedom of expression, this time, under the positive bias.

He also stated that there is no constitutional permissive that restricts freedom of expression in the negative sense, to preventively limit certain discussions to become public, which would characterize prior censorship, because what the Federal Constitution protects, in fact, is freedom of expression in the positive sense, allowing the citizen to manifest in the way he wants.

In this regard, the remark made by the minister in his vote, in which he states that "[the] fundamental right to freedom of expression, therefore, is directed not only to protect supposedly true, admirable or conventional opinions, but also to those that are dubious, exaggerated, reprehensible, satirical, humorous, as well as those not shared by the majorities."[10]

As occurred in the case of the presenter Xuxa, the repercussion of the judge caused it to increase the curiosity of the public in relation to the book. Just see that in the week of its debut (January 2020), were sold 769 copies of the biography Suzane Von Richtofen, a larger amount than other best sellers, as the novel by American Julia Quinn (614 copies),[11] known worldwide for its collection of books The Bridgertons.

When analyzing these cases, it is noted that the censorship of results obtained from consultations made in search providers or publication of literary works not only finds an obstacle in the prerogatives enshrined in the Federal Constitution – in particular the right to information and freedoms of expression and the press – as any discussion about them by the actors involved can, for the sake of truth, contribute to a certain fact being even more remembered and discussed than it was initially, given the curiosity generated by its judicialization.

Lucas Faillace White Castle draws important parallel with what is done in England to undermine the Streisand effect. There, "who enters with an action claiming damages can require the judiciary not only the secrecy of justice, that is, not disclose the information contained in the process, but also the very disclosure that the process and secrecy exist, under penalty of crime of disobedience ('contempt of court')".[12]

Although the Supreme Federal Court has understood that the right to be forgotten is incompatible with the Federal Constitution when its exercise is supported only in the passage of time, it is possible that the subject will be analyzed on a case-by-case parchment if any situations of excess or abuse are configured in the freedom of expression and information.

For instance, the Supreme Federal Court recently concluded the trial of the Special Feature 1,660,168/RJ, whose background was the analysis of the possibility of deindexing news that used the name of the party used in the results obtained in searches performed on certain providers.

When provoked by the Minister vice-president of the Supreme Court for possible judgment of retraction, due to the application of divergent understanding to Theme 786 of the Supreme Federal Court, Minister Marco Aurelio Bellizze pointed out that the decision given by the Third Panel of that Court was not contrary to Theme 786. The decision, in the case, kept the condemnation of certain search providers to install filters to unlink the name of a particular person (party appealed) of news about alleged fraud committed in public tender.

According to the rapporteur minister, the issue would have been "decided from the perspective of fundamental rights to privacy and privacy, as well as the protection of personal data, and not on the basis of the right to be forgotten". At the time, the minister differentiated the situation of non-disclosure of news from the prohibition of the publication of the name of the candidate of the public tender.

For all purposes, it is perceived that the Supreme Federal Court once again recognized the possibility of making Theme 786 more flexible and, in some way, safeguarding the right to be forgotten – even if analyzed from another perspective.

If this case-by-case analysis of the subject becomes a consolidated position, it will be up to the lawyers, given the absence of specific legislation, to work creatively and develop ways to overturn the Streisand effect in these exceptional situations as already occurs in England – in addition to the processing of cases under legal confidentiality – at the risk of not having practical results from any judgments that recognize the applicability of the right to be forgotten in the specific case.

 

[1] "It is incompatible with the Federal Constitution the idea of a right to forgetfulness, thus understood as the power to prevent, due to the passage of time, the disclosure of truthful facts or data and lawfully obtained and published in the media - analog or digital. Any excess or abuse in the exercise of freedom of expression and information should be analyzed on a case-by-case basis, based on constitutional parameters, especially those relating to the protection of honor, image, privacy and personality in general, and the express and specific legal provisions in the criminal and civil spheres" (Leading Case Extraordinary Appeal 1.010.606/RJ, Full Court of the Supreme Court, rapporteur Minister Dias Toffoli, trial date 2.11.2021).

[2] What is Streisand effect? Phenomenon viralizes 'secrets' of famous. Access on 8.1.2022.

[3] The Streisand Effect: When censorship backfires. Access on 7.29.2022.

[4] BECKER, Rodrigo Frantz (coord.). U.S. Supreme Court: historical cases. São Paulo: Grupo Almedina, 2022, E-book, p. 339.

[5] For Luiz Fernando Marrey Moncau, this judgment does not deal with the right to forgetfulness, but about the deindexation of results by search engines (MONCAU, Luiz Fernando Marrey, Direito ao Esquecimento: entre a liberdade de expressão, a privacidade e a proteção de dados pessoais, São Paulo: Thomson Reuters Brazil, 2020, p. 340). However, for the purposes of this article and knowing the terminological discussions on the subject, the judgment will be addressed as a precedent related to the right to be forgotten.

[6] Pursuant to Article 3, §2, of the CDC, "service is any activity provided in the consumer market, for remuneration, including those of a banking, financial, credit and security nature, except those arising from labor relations" (g.n.). In this sense, Minister Nancy Andrighi recorded in her vote that, although the activity carried out by Google is not directly remunerated by its users, "it is clear the existence of the so-called cross marketing – promotional action between products or services in which one of them, although not profitable in itself, provides gains arising from the sale of others. Although searches conducted via Google Search are free, the company sells advertising spaces on the site as well as preferences in the order of listing search results."

[7] Google Trends. Access on8.1.2022.

[8] Generally speaking, the work tells the story of Suzane Louise Von Richtofen, who was sentenced to 39 years in prison in closed regime for the murder of her parents (CAMPBELL, Ullisses. Suzane: assassina e manipuladora. 1st ed. São Paulo: Matrix, 2020).

[9] According to lessons from Luis Pinto Ferreira (Comments to the Brazilian Constitution. São Paulo: Saraiva, 1989. v. 1, p. 68), cited by the rapporteur Minister, freedom of expression is protected by the CF in two respects: the positive, which aims to protect the outsourcing of the manifestation, and the negative, which turns to the "prohibition of censorship".

[10] Complaint 38.201/SP, First Class of the Supreme Court, rapporteur min. Alexandre de Moraes, trial date 2.21.2020.

[11] Unauthorized biography of Suzane von Richthofen reaches the list. Access on 8.1.2022

[12] The Streisand effect. Access on 8.1.2022.