Case Summary and Outcome

The State Court of Appeals of São Paulo, Brazil held that an individual who had obtained criminal rehabilitation had a right to be forgotten, and ordered the de-indexing of content about his criminal conviction. The individual had requested that Google de-index specific URLs mentioning his criminal conviction from their search results linked to his name. The lower court had found in the individual’s favor, and Google then appealed. The Court recognized the right to be forgotten in Brazil but stressed that a search engine is only obliged to remove content when it has been ordered so by a court, and that a court will only order the removal of URLs specified by a plaintiff.

Facts

A Brazilian individual, Dulcimar Vilela de Queiroz, was criminally convicted in 1993, but had all his penalties extinguished in 2006 and obtained criminal rehabilitation in 2014 after fulfilling all requisite legal requirements. However, de Queiroz’s name remained linked to information about the criminal proceedings on the Google search engine, which, he believed, caused him damages, especially in the job market.

De Queiroz applied for a preliminary interlocutory injunction for the deindexation of specific URLs mentioning his criminal conviction. After this was denied, he filed an interlocutory appeal against this decision, and the preliminary interlocutory injunction was granted on appeal. On the merits, the court of the County of Jales, São Paulo ruled in favor of de Queiroz’s request for deindexation, but restricted the order only to the URLs indicated by de Queiroz. The Court referred to a Superior Court of Justice case which had established the right to be forgotten in the context of the “Massacre of Candelaria”, where that Court had been called upon to decide whether the right to be forgotten applied in respect of a news piece which revived the discussion about the violent assassination of eight young boys thirteen years after the incident. That Court had held that there was a right to be forgotten for convicted persons who had served their sentences, which therefore constituted a limitation on freedom of press in view of the constitutional protection of the dignity and constitutional presumption of re-socialization. The trial court held that this reasoning was applicable to the present case and that it was “unreasonable” that de Queiroz’s name continues to be associated with criminal activity on Google. The Court stated that Google would not be required to remove all search results related to de Queiroz’s name, but only those explicitly mentioned in the initial pleading. The Court cited the Internet Civil Framework (Federal Law 12,968/2014), which states that internet service providers are not accountable or liable for third-party publications unless in violation of an explicit court order demanding them to remove content, and noted that, even before the Framework, the identification of the URLs of desired pages to be removed was required for the determination of de-indexation obligations.

Google appealed to the State Court of Appeals of Sao Paulo.

Decision Overview

The central issues for the Court’s determination were whether de Queiroz had a right to be forgotten, and if Google was liable for moral damages caused by the dissemination of third-party publications on its platform.

De Queiroz argued that he had been harmed for years by Google’s search tool, which showed results for a search of his name that included criminal proceedings for which he had already obtained criminal rehabilitation. He claimed moral and material damages, stating that he had several missed job opportunities. De Queiroz argued that he was entitled to a right to be forgotten encompassed in his right to intimacy and honor.

Google submitted that the requested removal was inappropriate, unnecessary and disproportionate. Google submitted that the unwanted content is located on public internet pages which can be accessed by anyone regardless of their indexation in the Google search engine. It argued that the removal would threaten the collective right to information provided in article 220 of the Federal Constitution. Google argued that the “right to be forgotten” was not applicable to the case, since the fundamental constitutional rights of freedom of expression of thought, inviolability of belief, free expression of intellectual, artistic, scientific and communication activities, regardless of censorship or license, and of access to information by all of society (Brazilian Constitution, art. 5, IV, VI, IX and XIV) should prevail over the right to intimacy (Brazilian Constitution, art. 5, X).

The Court held that the fact that the unwanted pages remain accessible on other sites did not concern Google, and that de Queiroz had the right to sue other website providers if he so chose to at a later moment. The Court held that the lower court decision did not violate Article 220 of the Brazilian Constitution, since the principle of the right to be forgotten did not exclude the possibility of balancing the personality rights of the plaintiff, such as his honor, dignity, privacy and intimacy with the Article 220 right to information.

The Court accepted that there was a right to be forgotten, as established in 531 of the VI Journey of Civil Law of the CJF/STJ, which states: “The protection of human dignity in the information society includes the right be forgotten”. The Court held that the right to manifestation of thought, creation, expression, and information established by Article 220 of the Brazilian Constitution was not excessively or inappropriately restricted by a judicial balancing of freedom of expression with the protection of dignity. The Court stressed that Google’s institutional policies could not overlap on national territory, the law and the Federal Constitution in force in Brazil – particularly when it comes to fundamental rights.

Accordingly, the Court partially granted de Queiroz’s request and ordered that Google de-index the valid URLs identified by de Queiroz in his initial pleading. The Court emphasized that Google was not obliged to remove “all availability or linkage of the plaintiff’s name on sites, links or search engines”, since it “owns only one single search engine, Google (it is not the owner of any site, link or alternate search engine)”.