Case Summary and Outcome

The Superior Court of Justice (“STJ”) of Brazil ordered various search engines to remove links associating a public prosecutor with fraud allegations based in part on her “right to be forgotten”.  DPN had filed a lawsuit against Google, Yahoo!, and Microsoft to remove search results relating to her part in the 2006-2007 public tender for judgeships in the State of Rio de Janeiro. The Court reasoned that the private interest of the individual outweighed the public interest of access to information in view of the length of time, over 10 years, that had elapsed since the incidents in question. “It is not a question of effectively erasing the past, but of allowing the person involved to follow his or her life with reasonable anonymity,” the Court said.

This is a landmark decision in Brazilian jurisprudence because it is the first time the STJ has allowed the de-indexation of search results.

This case analysis was contributed to by Dissenso.org, a project developed by InternetLab.

Facts

During the course of a public tender for judges in the State of Rio de Janeiro in 2006-2007, several allegations emerged that relatives of an appeals court judge had been unfairly favored with alleged access to privileged information and knowledge of what would appear in the exam. As part of these allegations, DPN was accused of having access to the exam answers. DPN was unsuccessful in the public tender. The National Council of Justice investigated the fraud allegations but concluded that there was not enough evidence to confirm that a fraud had actually occurred. 

Information on the alleged fraud was posted on various Brazilian websites including Conjur and Folha. DPN claimed that the search engine results unjustly linked her name to the fraud and asked Google, Yahoo! and Microsoft to filter those results in order to dissociate herself from any content reporting the alleged fraud. DPN argued that the association injured her honor and reputation.

In 2009, DPN commenced a lawsuit against the three search engines to compel them to dissociate her name from the fraud content. The local court denied her request but the Court of Appeals of Rio de Janeiro (TJRJ) overturned the local court’s ruling. The search engines appealed to the Superior Court of Justice (“STJ”).

Decision Overview

On May 8, 2018, the Superior Court of Justice (“STJ”), in a split 3-2 vote, confirmed the Court of Appeals’ decision, referring to the “right to be forgotten” and ordering the search engines to de-list the search results as requested by DPN so that a search against her name alone would not show content relating to the fraud allegations. 

The main issue before the Court was the clash of Brazilian constitutional rights. The Court has often struggled to find the appropriate balance between freedom of expression and information and the right to privacy, which encompasses the protection of honor and the right to be forgotten. In this case, the Court was tasked with balancing public access to information with the alleged impact the content had on DPN’s reputation.

The search engines (Google, Yahoo!, Microsoft) argued that it would be impossible to completely dissociate DPN’s name from the fraud allegation content and that it was up to DPN to identify the links. Furthermore, they argued that DPN’s request amounted to censorship and would prevent the public from accessing information that was important to the public’s interest. Finally, the search engines moved that the case be dismissed as DPN’s requests had no legal grounds.

J. Nancy Andrighi, following precedent, argued that the risk of censorship was too great and that it was impracticable to compel search engines to filter search requests. She would have found in favor of the search engines. However, the dissenting decision of  J. Bellizze prevailed. He claimed that DPN should be able to conduct her life with “reasonable anonymity.” He felt it was unreasonable that searches against her name would still result in links mentioning the alleged fraud 10 years after the events had taken place.

Furthermore, J. Bellizze stated that the purpose of the court was not to impose on search engines the obligation to remove user-generated content from the internet, nor to compel them to act as censors, rather it was for the court to analyze exceptional cases so as to balance the competing constitutional rights. In this case, J. Bellizze found that DPN’s private interest outweighed the public interest of access to information. “It is not a question of effectively erasing the past, but of allowing the person involved to follow his or her life with reasonable anonymity, without a dishonor being  routinely recalled and perpetuated by automated search systems,” he said.

J. Bellize acknowledged the decision of the European Court of Justice in the Google Inc. Vs. Spanish Agency for Data Protection and Mario Costeja González case but dismissed its influence because it had been based on a general data protection law applicable across the EU from 1995, and was not relevant in Brazil.

Finally, J. Bellizze argued that information about the fraud could still be obtained if someone used search criteria relating to the fraud allegations together with DPN’s name, or simply searched against the fraud allegations. However, he felt that a fair balance could be drawn between freedom of information and the right to privacy by granting DPN’s request that a search against her name exclusively would not throw up results related to the fraud allegations. J. Paulo de Moura Ribeiro and J. Paulo de Tarso de Sanseverino joined J. Bellizze. J. Ricardo Cueva joined J. Nancy Andrighi’s dissent.

Thus, the Third Chamber of the STJ compelled Google, Yahoo!, and Microsoft to prevent news associating DPN’s name with the alleged fraud from appearing in search results of her name alone.