The Right to be Forgotten

Rodrigo de Assis Torres and Patrick Barros Rahy

Rio de Janeiro, July 1958. A girl was walking by the streets of Copacabana when two men approached her and took her to the rooftop of a building under construction. After being abused and beaten, the victim’s body was thrown from the rooftop, in order to simulate a suicide. The case immediately became famous and, for years, its developments took over the main headlines of the newspapers. Meanwhile, the pain and anguish suffered by the victim’s family seemed to be endless.

Rio de Janeiro, July 1993. Just before midnight, two cars with covered license plates stop in front of Candelaria Church, downtown. From them, gunmen open fire against tens of homeless children and adolescents who were sleeping on the church’s stairs. The event, known as “Candelaria Massacre”, shocked the World and resulted in the indictment of 7 people, from which 4 were condemned and 3 were acquitted.

But the similarities between those stories go much further than the City in which they occurred. Many years after the crimes, both cases were retold by police TV shows of the greatest television networks in Brazil, leading many viewers to relive the tragedies – or, for those who were not even born, to know them.

It turns out that those involved in the stories saw themselves again in the sights of the press and public opinion, forcing them to live again all the persecution and anguish suffered at the time of the facts, which had been overcome with the course of time.

Feeling harmed, the family of the victim of murder in Copacabana and one of the acquitted defendants in the Candelaria Massacre filed civil lawsuits against the television networks, alleging to have “the right to be forgotten” – that is, the right to, after so long, finally be rid of mistakes or past traumas, without having to live with this torment ad aeternum.

Although both cases against the same television network have recently been judged by the same Chamber and Reporting Justice at the Brazilian Superior Court of Justice (the one responsible for the last word regarding violation of Federal Law), the outcome was quite the opposite: while the defendant of Candelaria Massacre was compensated in $ 50,000 for moral damages, the claim of the family of the victim of murder in Copacabana was denied by all instances. This is explained by one simple reason: the right to be forgotten is not absolute – it should be analyzed in each case by measuring in one hand the personal rights and on the other hand the public interest and public press freedom.

In the case of “Candelaria Massacre” the Superior Court of Justice held that the defendant of a criminal offense has the right to be forgotten after a while, especially since, in this case, the defendant was submitted to trail and acquitted. In addition, the TV show could have hidden the name and the face of the man, which would not affect the content of the news and neither violate his honor.

In the first case here considered, the family of the victim alleged that the disclosure of the victim’s name and her real photos revived the murder remembrance and all the suffering that surrounds it. However, the Justice at the Superior Court of Justice understood that, in this case, the crime was inseparable from the victim’s name – that is, it would not be possible to portray the story without telling the name of the victim. Therefore, although recognizing that the report brought back bad feelings to the family, the Court concluded that the press freedom should prevail.

The family then alleged violation of the constitutional principles of dignity, privacy and honor, leading the discussion to the Supreme Court (the one responsible for violations of the Brazilian Constitution), which has already recognized the great social impact of the matter, meaning that the case will be heard on its merits.

The judgment by the Supreme Court, not scheduled yet, will surely be a watershed in regard to the recognition of the right to be forgotten in Brazil, since there is currently no specific legislation on the subject; just an unassured case law, which urgently needs to balance the principles put into discussion. Around the world, the discussion is increasingly gaining ground, particularly with the exponential use of the Internet and the ease to obtain and spread information – not always true – in a matter of seconds, using search engines like Google and Yahoo, or social networks such as Facebook and Twitter.

Given this situation, in May 2014 the Court of Justice of the European Union sanctioned the right to be forgotten in the EU, stating that "irrelevant" or "outdated" information (as held by the Court) are likely to be erased. More specifically, the CJEU said that the decision applies to all information "inadequate, irrelevant or no longer relevant or excessive, in relation to the purpose for which they were processed taking into account the elapsed time". As a result, companies like Google have received thousands of requests from European citizens, demanding that some information from websites like Wikipedia, BBC and The Guardian should not appear on the searching engine.

In the United States, the right to be forgotten is not so welcomed: because of the 1st Amendment to the US Constitution, there are strong restrictions on the regulation of press freedom, which often overlaps the individual rights. Thus, a lot of American jurists are contrary to the position adopted in Europe, arguing that the right to be forgotten is censorship.

Therefore, only the following chapters will reveal what the Brazilian system prefers to forget: privacy, prioritized by European law, or press freedom, almost untouchable in American law.