Case Summary and Outcome

The São Paulo State Court of Appeal held that Google was not obliged to remove search results related to legal proceedings of an individual. The individual had been summarily acquitted on criminal charges when the criminal court held there was no evidence for the charge. He unsuccessfully applied to the first instance court for the removal of all references to his name from searches of the criminal proceedings and then appealed the decision. The Court held that the dissemination of the content was lawful due to the public nature of the criminal lawsuit, and that search engines were not liable for third-party publications which they display as a search result for specific terms.

Facts

A Brazilian individual, Roberto Borghette de Melo, filed a lawsuit against Google Brazil Internet Ltda. seeking the removal of search results of his name which were related to a criminal lawsuit filed against him. He had been summarily acquitted by the 3rd Federal Court of Marilia in those criminal proceedings due to a lack of evidence of any criminal activity (in terms of the Brazilian Procedure Code, art. 397, III, which states that summary acquittal is due when the fact evidently does not constitute a crime). An appeal filed by the Federal Prosecution Service had been dismissed by the trial judge, and the criminal lawsuit decision had become final and unappealable on June 13, 2012. However, search results for de Melo’s name continually referred to the alleged criminal activity.

De Melo argued that his right to be forgotten within the meaning of the right to intimacy, private life, and image, established in article 5º, X of the Brazilian Constitution had been violated. In an appeal, he requested Google to exclude his name from all search results referring to the criminal lawsuit. The request was denied by the trial judge of the Court of the County of Marília, in the 5th Civil Court, which held that “Google acts as a mere search provider, i.e., it only enables access to the information already existing on the electronic sites, over which it has no responsibility”.

De Melo appealed to the São Paulo State Court of Appeal.

Decision Overview

Judge Natan Zelinschi de Arruda, the case rapporteur, was joined by judges Hamid Bdine and Enio Zuliani in a unanimous decision. The main issue before the Court was whether a search engine platform should be held liable for removing or obscuring information of public interest (information on lawsuits not protected by judicial confidentiality) and whether the right to be forgotten should be protected.

De Melo argued that he was entitled to the right to be forgotten, through the request of the removal of his name from Google’s search engine whenever it was associated with news reporting the criminal lawsuit. He submitted  that the association with the criminal lawsuit had brought him significant financial losses, and argued that there was no public interest in the information. He argued that the right to be forgotten is implicit in Brazilian legislation, which ensures the protection of intimacy, public image, and private life, as well as human dignity.

Google argued that the case concerned a conflict of constitutional principles. It argued that the information referring to the criminal lawsuit is information of public character and social relevance, under the right to publicity of State procedures and access to information established in articles 5º, LX, and 220 of the Brazilian Constitution, and in the Access to Information Act. nº 12.527/11. Article 5º, LX states that everyone has the right to receive information about their particular interest, or of collective or general interest from public bodies, except for those whose secrecy is essential for the security of society and the State. Google submitted that it is not the owner of the websites where the information about the lawsuit was made public.

The Court held that internet search engine providers are not obliged to remove content made available by third-party platforms, especially information of public interest such as criminal and civil lawsuits for which there was no declaration of judicial secrecy.

The Court rejected De Melo’s request for deindexation of his name from news and general content referring to the criminal lawsuit, finding that “the public nature of judicial proceedings must be taken into consideration”. It held that the information about the lawsuits has a public character, and that “therefore, [its dissemination is] far from being considered illegal”. The Court cited Superior Court of Justice jurisprudence that “the search provider is a species of the genus ‘content provider’, as it does not include, host, organize or in any other way manage the virtual pages indicated in the results, limiting itself to indicating links where the search terms provided by users can be found”.

The Court held that a “generic and superficial reference about the right to be forgotten does not provide grounds for the acceptance of the plaintiff’s claim”, restating that the veracity of the events publicized and the public nature of the proceedings meant that the publicity of State procedures should prevail. The Court did not examine when and where a right to be forgotten could give cause to the limitation of the publicity of judicial proceedings, and did not consider the claim that maintaining the information of an association to a criminal lawsuit could violate personality rights related to privacy, image, and honor. The Court did not take into consideration that the criminal lawsuit had been the result of a wrongful accusation, which had been immediately rejected by the Court on the grounds of evident lack of criminal activity.

The Court held that the absence of confidentiality or secrecy in the criminal procedure meant that the principle of publicity should prevail and that De Melo’s defense of his right to be forgotten was not sufficiently convincing.