Case Summary and Outcome

The Appellate Court of São Paulo held that an actress could not enjoy the right to be forgotten based on her previous conduct. A model had sought the removal from Google of all search results linked to her stage name as they were linking to pornographic images. The Court of First Instance ordered the removal of the search results on the grounds that the right to be forgotten should prevail over the right to information in order to preserve personality rights, such as image, honor, intimacy, and privacy. On appeal, the Court did not examine the right to information of freedom of expression, finding that the actress had not been able to demonstrate that she regretted “past behaviors related to pornography” and so could not rely on the right to be forgotten.

Facts

Maria Helena Melillo is a Brazilian model and professional actress who used the stage name “Meg Melillo”. Melillo believed that content related to her stage name was causing damage to her personal and professional life because it was associated with pornographic photos, videos and comments and she was often mis-identified with “prostitute girls”. She maintained that “even if she had traded her body in the past, she would have the right to forget the past and live worthily”.

Melillo filed a lawsuit to require Google to block any results associated with the name “Meg Melillo”. She argued that Google violated her right to human dignity by providing pornographic content related to her stage name. In the first instance court, an interlocutory injunction was granted to affirm the right to be forgotten. The final decision confirmed the injunction. The Court of First Instance held that the right to be forgotten should prevail over the right to information to preserve personality rights, such as image, honor, intimacy and privacy. Google was ordered to suppress the name “Meg Melillo” from its search results, under the penalty of a daily fine of BRL1,000.00.

Google appealed the decision to the ninth chamber of civil procedure of the Appellate Court of São Paulo (TJSP).

Decision Overview

Justice Rapporteur José Aparício Coelho Prado Neto analyzed the appeal. The main issue before the court was whether internet users’ right to be forgotten should be protected, and whether Google should be held liable for the content of search results containing Melillo’s name.

Melillo argued that she faced problems in her professional and personal life due to the search results linked to her stage name “Meg Melillo” as search results with that name led to pornographic photos, videos and comments and associations with “prostitute girls”. She submitted that those problems intensified after she won a famous reality show in Brazil in 2011 (“Big Brother Brazil”) and that, even though she commercialized her body in the past, she had the right to forget these previous events and live with dignity.

Google argued that it had no responsibility, as a search engine, to remove from the Internet unwanted content about the past of a user, and had no duty to locate search results without a clear indication of the content supposed to be removed – given the large number of pages and videos on the Internet. Google submitted that the Brazilian Superior Court of Justice had repeatedly ruled that search engines were not required to suppress search results related to a particular term or expression, even when the URL of the page is indicated.

The Court described the right to be forgotten as “the right a user has to have erased, suppressed or blocked a personal data or fact due to the passage of time and because it violates his fundamental rights”. It noted that “the right to be forgotten is directly related to privacy, allowing citizens to remain alone and anonymous”.

The Court quoted a constitutional law textbook, O Direito ao Esquecimento na Sociedad da Informação, in Doutrinas Essenciais de Direito Constitucional, 2015. (The Right to be Forgotten in the Information Society, in Essential Doctrines of Constitutional Law, 2015), that “Informing is not to annihilate someone forever or punish them publicly and indefinitely” and reinforces the right to human dignity. However, the Court held that it would not be possible to apply the right to be forgotten in the present case because Melillo, by her own will, never ceased to associate her image with pornography and eroticism as, for example, after first seeking the application of the right to be forgotten, she participated in “Big Brother Brazil”, where she won the final prize of BRL 1,500,000.00. The Court added that the images Melillo sought to be forgotten could possibly have led her to participate in this TV show. The Court commented that Melillo did not seem concerned with her privacy, as she “left her breasts exposed to millions of viewers”, appeared to have had sexual intercourse in the reality TV show, and posed for Playboy magazine.

The Court did not cite freedom of expression as a legal basis to its ruling.

Accordingly, the Court granted Google’s appeal and overturned the first instance decision.