Direito ao esquecimento na sociedade da informação: Uma análise à luz dos direitos da personalidade e da perenização das informações

Abstract

The information society, characterized by a high capacity to store, transmit and retrieve information, has made forgetting the exception and remembering the rule. New information and communication technologies have influenced many aspects of society, including the legal system. Because of the impact that events that took place years ago have on our lives, an increasing number of people have invoked what is known as the right to be forgotten. At first, the justifications for these sentences were based on criminal law, such as the right to resocialization. Later, as the internet became more widely used, these demands received new justifications and, as a result, new attire due to the quick and dynamic nature of cyberspace. On the internet, remembering has gotten a lot simpler, while managing personal data has been complicated. Therefore, in addition to the rights of personality, the protection of personal data has become the foundation for the right to be forgotten on the internet. The existence of a right to be forgotten is likewise debated in Brazil due to the same issues. However, there is no explicit mention of this right in Brazilian law. As a result, greater action by judges and jurists is required to establish the concept and criteria for applying this right. A vast literature was produced on the subject, and favorable decisions were issued. However, the subject was criticized as well. To resolve the disagreement, the highest court of Brazil, Supreme Federal Court, examined the debate over the right to be forgotten. The right to be forgotten, according to the Court, is incompatible with the Brazilian constitutional order. Unlike in other countries, the Brazilian Court ruled that the right to be forgotten is inconsistent with the constitution, primarily because there is no legal provision for it and it violates communicative freedoms. However, the Supreme Court failed to properly consider the conflicting interests because, according to the Court, freedom of expression takes precedence over other fundamental rights. Deindexing was also not regarded as a form of the right to forget, in contrast to the leading case Google Spain. Given that the definition of the Supreme Court was not legally precise, the purpose of this study is to show that the right to forgetting is compatible with communicative rights. Moreover, to show that the Supreme Court's general repercussions thesis had no effect on deindexation. It has been determined through a survey of the literature and an examination of judicial precedents that Brazil's legal system is compatible with the right to be forgotten. Additionally, the decision of STF has no influence on deindexing, which may be requested in Brazil based on the revised view of the Superior Court of Justice on the legal obligations of search engines. In this context, this legal concept in Brazil is reinforced by the new regulations governing the protection of personal data.