Right to be Forgotten v. Right to de-indexation

One subject that has been gaining prominence in Brazil in the context of the internet is the right to be forgotten. Proof of this tendency is found in national jurisprudence, in cases judged by the Superior Court of Justice – Supremo Tribunal de Justiça-  (REsp 1.311.921/2012 and REsp 1.511.873/2016); and at the public hearing held on June 12, 2017 in the Brazilian Supreme Court – Supremo Tribunal Federal – related to the case of general repercussion RE 1.010.606.

Right to be forgotten and right to de-indexation

The right to be forgotten is a broad concept that includes a right to limit the use of certain information, mainly related to criminal cases, in which a person was considered innocent or has already served his sentence. And a right to the de-indexation of links for online search engines. Search engines, with a worrisome market dominance by Google, are of paramount importance due to the fundamental intermediation they exert in the access to online information. In this way, requiring a search engine to eliminate a certain result affects not only access but also the right to freedom of expression, the protection of personality rights  and the dignity of the persons, especially in relation to privacy and the protection of personal data.
It is also related to the question of who will carry out this judgment. In Europe the task was left to the private sector, in the sense that, at first, it is Google who receives and decides whether or not to comply with the requests for de-indexation sent by citizens, which are based on criteria defined by legislation and jurisprudence. This raises concerns about the transparency of the decision-making process on these requests, and  about what should be a fair level of accountability to intermediaries.

Right to de-indexation in Europe

In Europe, the right to de-indexation arose in the Google v. Spanish Agency for Data Protection (C-131/12) in 2014. In this case, basically, a Spanish citizen asked the spanish personal data authority  to order Google search engine to remove the results of the search of his name, that referred to an old  news  from 1998 announcing auction of his house due to tax debts. Firstly, the EU Court of Justice ruled that Google, whose head office and servers are in the US, was under the jurisdiction of the European Directive 95/46, as the Spanish subsidiary of Google achieved economic gains. In other words, the emphasis was placed on the location of the user and not on the server where the data was processed or the company’s headquarters. And also Google was considered data controller when it was indexing results.

Brazil

In Brazil, there is no legal provision regarding the existence of a right to de-indexation, but the issue was addressed in two STJ judgments mentioned above. It is difficult to draw parallels with the right to de-indexation applied in Europe because the CJEU’s judgment is supported by the Directive 95/46 on the protection of personal data. Thus the CJEU considered Google as a personal data controller when the company indexes results of European citizens’ names, and thus has responsibility in making the indexing available. In addition  the General Data Protection Regulation 2016/679, which enters into force in 2018, explicitly sets out the right of Europeans to demand their personal data to be erased in certain circumstances. In Brazil, however, there is still no personal data protection laws, although there are bills under discussion in the National Congress.

Supreme Court of Justice (STJ) judge Nancy affirms (REsp 1.519.873, p. 15) that the Brazilian Internet Bill of Rights (Law n° 12.965/2014), article 7, I and X, establishes what she considers to be a limited form of right to be forgetten, since it allows a person to require that an internet application to exclude the personal data that was directly provided by he or she after the termination of the relationship of the parties,

However, the application of the right to de-indexation is still a necessary debate in Brazil. Researcher Julia Powles affirms we must be careful to not fall into all-or-nothing extremes. For her, the right to be forgotten should apply only to ordinary people, and not to public personalities or public events, in order to public opinion to not interfere in a damaging way in the private sphere of an individual based on facts no longer relevant.