Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Contracts Expression
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The Brazilian Superior Court of Justice found that the right of information and freedom of the press (Brazilian Federal Constitution “BFC”, Article 5th, IX) is limited by certain protections of the individual (BFC, Article 1st, III), including the inviolability of privacy, intimacy and image (BFC, Article 5th, X) in the context of the right to be forgotten. The Court used this reasoning to find in favor of Jurandir Gomes de França whose image and name was used in Globo’s television special about the infamous Candelária massacre, despite the fact that Jurandir had been acquitted of all charges. Globo was ordered to indemnify Jurandir for using his image and violating his right to be forgotten.
Jurandir Gomes de França was suspected of contributing to the 1993 Candelária massacre, where policemen and civilians opened fire on over 70 homeless children, resulting in the death of 8 individuals aged 11-20. Two policemen pleaded guilty leading to Jurandir Gomes de França, a civilian, and two other policemen to be acquitted of all criminal charges with the jury citing lack of evidence. The situations surrounding the controversial decision lead to suspicions of corruption. The Prosecution went as far as to boycott the final day of court calling the ordeal a “clown show,” where new witnesses were barred from being heard and new defendants barred from being added.
Globo, a TV broadcaster, created a documentary (“Hot Line:” The Candelaria Slaughter”) that looked into the 1993 Candelária massacre using Jurandir Gomes de França’s name and image. The purpose of the documentary was to explore the controversy and potential corruption that engulfed the court’s criminal proceedings. Globo stated their goal was to show the lack of adequate police investigation of the massacre and that Jurandir Gomes de França was a key player. Jurandir Gomes de França brought the suit to the S.T.J. arguing that Globo violated his right to be forgotten by using his name and image without his permission. Globo responded that because of the historical importance of the 1993 Candelária massacre, the event is of public fact and, therefore, can be portrayed and discussed in news programs. Jurandir Gomes de França argued that his individual rights triumph over Globo’s freedom of expression.
Justice Luis Felipe Salomāo delivered the opinion of the Court finding in favor of Jurandir Gomes de França and the individual right to be forgotten. The Justice stated that the national attention could lead a reasonable man to question Jurandir Gomes de França’s guilt despite the fact he had been acquitted of all charges, the use of Jurandir Gomes de França’s name and image were of direct violation of his individual rights. The Justice reasoned further that criminals had a right to be forgotten after serving their sentence and thus an individual acquitted of all charges was privy to a similar right.
In response to Globo’s freedom of expression defense, Justice Salomão stated that Globo’s freedom of expression rights conflicted with Jurandir Gomes de França’s individual right to be forgotten. He expresses a fear of individual rights being lost in a digital age and the sensualization of criminal activity by the media. The opinion focuses on individuals’ rights and argues an individual should not have to “relive trial” and a violation of human dignity is not softened if it concerns historical fact. He dismissed Globo’s public interest argument by saying there is a difference between the public being interested and the public interest. Finally, the Justice distinguishes that his opinion does not affect the current news reporting limitedly on current crimes, however, it creates an “expiration date” as to how long the media can report on an individual. This “expiration date” prevent documentaries that could cause damage to an individual’s reputation and thus prevent the individual from successfully rehabilitating into society. The Justice reasons that individual constitutional rights can limit freedom of expression, especially in commercial settings.
The Court ordered Globo to pay Braz. R$50.000 in damages to Jurandir Gomes de França.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case places an individual’s right to be forgotten and privacy over freedom of expression allocated through media outlets. From a freedom of expression standpoint, this is bad because it restricts how and when news outlets can discuss criminal proceedings. It limits the “watchdog” role of media, which acts in part to inform the public of corruption. New information from a case that occurred 20 years ago may still be relevant and essential to the public interest.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Brazil is a civil law country. This decision holds persuasive value in the lower courts of Brazil but is not strictly binding.
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