Privacy Advisor

The Right To Be Forgotten in Brazil

September 1, 2013

By Renato Opice Blum

There has been considerable international discussion and debate about the so-called "right to be forgotten"—the right for people to have information removed about them, be it accurate or not, that was circulated on the Internet.

Technical issues aside, Brazil is still dragging its feet passing even basic legislation regarding the protection of personal data, and the issue regarding this right to be forgotten is beginning to grow in importance within the country. The issue was recently addressed by the 6ª Jornada de Direito Civil da Justiça Federal/2013, a Brazilian legal committee, which concluded that such a right would strengthen the protection of human dignity. The issue was analyzed in some depth and symbolically the STJ, the Brazilian Supreme Court for federal law infringements, took the position that this seems to be a trend in the country.

In any event, an analysis of this issue is far from simple. From the beginning we have faced a conflict between those that advocate the right to anonymity regarding intimacy, private life and social rehabilitation and those in favor of the unrestricted right to access information. On one hand, it is desirable to protect the private lives of individuals, while on the other it is necessary to guarantee that information of unquestionable public interest is always freely accessible.

Thus, material and public facts, whose effects directly impact society, need to remain accessible as they form part of the history of the nation. However, every person should have guaranteed to them the right that their personal life and information is protected.

Photos from college days, controversial views expressed during adolescence and events of everyday private life that ordinarily would fade with the passing of time should be removed if the subject so desires.

The situation becomes more complicated when information circulating on the Net finds its way into the news media, in publications, journals or in the comments or opinions of others. This is because, clearly, in any democracy, the freedom of the press, freedom of speech and expression are rights that, exercised responsibly, should be preserved. In the event that information is false, libelous or defamatory without doubt this must be withdrawn immediately or at least corrected where information is not false but exaggerated.

However, where uncomfortable but true facts in the public interest are published, criminal convictions, for instance, then it is necessary to reflect upon whether it is appropriate to be able to impact people's lives in this way ad infinitum.

Indeed, on one side we have veracity of the facts, right to information, freedom of the press and thought. On the other, the damaging consequence of indefinitely maintaining information about individuals and their families, despite their having perhaps paid for their wrongdoing as provided by the law, i.e., prison, other restrictions of liberty, payment of fines, etc.

It seems that Brazilian legislation has already provided guidance to resolve this issue. In the field of criminal law, the criminal code and criminal procedure make clear that the individual has the absolute right to rehabilitation and social reintegration. (Art.93 of the Brazilian Penal Code and art.748 of the Brazilian Criminal Procedural Code).

Those rehabilitated are afforded the right to confidentiality regarding individual records of prosecution and conviction. The criminal enforcement system must also provide conditions that allow for a more harmonious reintegration of offenders into society under Art.1 LEP, the Brazilian Sentencing Enforcement Code, the object being to reduce criminal reoffending.

Given that a fundamental principle of sentencing is ultimately to return those convicted to more productive lives in society, then in order to facilitate this, the right to forget previous wrongdoings should at least be understood.

Furthermore, Brazilian civil legislation also provides that the exercise of personal rights cannot be restricted (art. 11:12 - Civil Code), thus, in any situation, facts of the past, although true, can completely disappear from the future of a man or woman.

To conclude, although it is in the public interest that we have free access to certain types of information about people, it may often be more important that certain facts are overlooked, for the benefit of rescuing the dignity of individuals, who, left in peace, can get on with their lives.

Prof. Renato Opice Blum, attorney, economist and president of the IT Advisory Board of Fecomercio, received an MBA on Electronic Law Coordinator at Sao Paulo Law School and in the First Digital Law course of FGV/GVLaw in 2011. Blum is a professor at USP and Mackenzie; member of Octopus Cybercrime Community connected with Council of Europe; president of the Council of Security and Information Technology at Commerce Federation of São Paulo and of the American Chamber of Commerce Technology Law Committee; advisor for the Brazilian Bar High Technology Crimes Committee, and invited professor at multiple international programs. Blum is co-author of the “Manual of Electronic Law and Internet” and "Electronic Law: Internet and Courts."

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