A twist on the brazilian right to be forgotten

This week, the Brazilian Superior Court of Justice (STJ) reached a split decision in favor of a Brazilian prosecutor, who sued Google and Yahoo for the right to be forgotten. The case is a landmark in Brazilian jurisprudence, as it allows the de-indexation of search results, a decision never before granted by the STJ.

In this case, a prosecutor from Rio de Janeiro was being investigated for committing fraud on the test to be approved for a judgeship in 2007. She was later found innocent by the Brazilian National Counsel of Justice. However, when her name was searched online, the first results linked her directly to the news about her possible misconduct. The prosecutor then filed a lawsuit against Google, Yahoo and Microsoft requesting de-indexation of the results that link her name to the news of the possible fraud.

The Judge-Rapporteur voted against the prosecutor, following the previous decisions that stated the impossibility of de-indexation. In her opinion, which was followed by another judge’s opinion, demanding that companies that provide online search platforms to perform a previous analysis of results before actually providing them to the user, could be considered endorsing censorship.

A third judge on the panel, however, disagreed with the Judge-Rapporteur, stating that there was legal basis for granting the right to be forgotten in the terms requested by the prosecutor, considering that the present case differs from the previous ones analyzed by the court. A fourth judge agreed with the dissenting opinion, and the trial was then tied.

The ruling finally came to an end this week, when the fifth and final judge to vote on the panel agreed with the divergent opinion and voted for the possibility of de-indexation of search results online provided by search engine companies. The judge held that his vote took into consideration the particular aspects of the case and that the news that were presented about the prosecutor would invade her privacy and damage her personality rights. He also considered that the public liberties of the citizen should prevail over the right of public information.

It is still possible that the companies will appeal the decision of the STJ that granted the de-indexation in this case. However, this decision could indicate a shift in the way that the Brazilian Courts view the right to be forgotten.

The Brazilian Supreme Court is also likely to decide this year about the right to be forgotten, using as the foundation, a leading case involving a television show that aired a program about the murder of a young girl in 1958, naming the girl, for which the parents seek the right to be forgotten. Though this case does not involve issues dealt with by online search engines, the Supreme Court’s procedures indicate that the final decision will set the general tone for the right to be forgotten in Brazil.

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