Recently, the European Court of Justice recognized the “right to be forgotten” (RTBF) on Internet search engines in operation within the European Union. The decision outlined parameters that should be followed when assessing if a request for removal should be granted. Two of the parameters are if the content indexed by the search engines is irrelevant or outdated.
One of the consequences of this controversial ruling is the influence on other jurisdictions. For example, a Japanese court recently ordered Google to remove 122 links that gave the impression that a crime was committed by a citizen, when, in fact, he had no involvement with the situation. The court applied arguments similar to EU court standards, even though Japan´s culture and approach to privacy is different from Europe´s.
Following the trend, a member of the Brazilian House of Representatives introduced a bill of law which aims to implement a right to be forgotten on the Internet (PL 7881/2014):
Art 1 – It is required, by request of any citizen or person involved, to remove links from Internet search engines that make reference to irrelevant or outdated data.
The bill has only the above-mentioned provision and does not set any parameters for what can be considered irrelevant and outdated data. As a justification, it only mentions pieces of news and the decision from the EU´s Court of Justice, regardless the jurisdiction of the court.
It is interesting to mention that the RTBF is not something new in Brazil, online and offline. The Federal Penal Code (art. 94) and the Penal Procedure Code (art. 743) have long established that a former convicted criminal has the right to request for his/her social rehabilitation, which means to hide from public databases any information about his/her conviction and period and type of penalty. Such information should only be retrieved in case the person commits a new felony. Any different query to the database should only return the absence of any information related to his/her criminal procedure.
The Superior Court of Justice has also ruled on cases involving offline information conveyed by TV shows. The court analyzed whether the information was irrelevant and/or outdated. On one of the cases (REsp nº 1.334.097 – RJ), the RTBF was granted because the judges understood that information previously aired on a show was wrong, outdated and harmful to the subject´s image. In the other case (REsp nº 1.335.153 – RJ), the judges argued that even though the story described on the TV show was based on a really old real case—and retelling it could bring psychological harm to the subject´s family—it was necessary to mention the subject´s name to tell it, therefore the RTBF was not granted. The Superior Court is yet to deal with a case assessing the online RTBF, but the federal courts issued in 2013 a guidance affirming that personality rights on the information society encompassed the RTBF on the Internet (Guidance 531 of the Federal Courts Civil Law Study Group).
In April 2014, a new Internet law (Federal Law 12.965/14) was enacted in Brazil highlighting freedom of speech and privacy as its main foundations, but it did not give prevalence to any of these rights. Over the innumerous provisions assessing privacy and data protection, the closest one to the RTBF is the right to request from Internet application services the removal of personal data the user had previously conferred to the service (art. 7º, X). But this right does not grant the possibility of requesting the removal of content created and conveyed by third-parties. It is possible, though, to file a lawsuit against a company responsible for user-generated content platform to request content removal, but there are not pre-determined parameters similar to what was outlined by the EU Court of Justice. There is case law discussing similar scenarios, but none of them has nationwide application and do not create a precedent. Such wide spread effect can, nonetheless, be achieved if a federal law regulates the RTBF.
The Brazilian bill of law regulating the RTBF is vague and controversial. Its justification, in a manner, gives a negative impression to the very same right the bill aims to implement, since it quotes negative pieces of news. And it doesn’t give in-depth explanation of why such right should be inserted on the country´s legal framework, and does not even try to construct on the parameters of the EU´s Court and adapt them to the peculiarities of the local scenario. Even though Brazilian courts in several cases have cherished privacy over freedom of speech, this bill implementing the RTBF is bound not to pass the Congress’s lengthy approval procedure and would also face harsh protests from the Brazilian Internet community, which has been very active since the Internet law started to be discussed, almost 10 years ago.
Therefore, the odds of putting into effect a law establishing the RTBF on Brazilian Internet search engines are small. The big chances come from lawsuits that might create precedents which will guide future rulings.