Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Expands Expression
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The Brazilian Federal Supreme Court held that a general right to be forgotten is incompatible with the Federal Constitution. In 2004, the family of a murdered woman had approached the courts, arguing that the use of images of the woman and her relatives in broadcast of a television program detailing her 1958 murder infringed their rights to privacy. The Court stated that the Constitution does protect the rights to privacy, honor, image, and personality and that situations which have invoked the right to be forgotten can be determined under those existing laws. It held that a general and abstract right to be forgotten would be an excessive and authoritarian restriction of the right to freedom of expression and information.
In 2004, a television program, “Linha Direta” broadcast by “Globo Comunicação e Participações” (GLOBO), a global mass media company based in Brazil, discussed the 1958 murder of Aida Curi, a young woman murdered in a sex crime which had gained national attention. The program discussed the history of Aida Curi and showed images of her and her relatives, especially her brothers, Nelson Curi, Roberto Curi, Waldir Curi, and Maurício Curi despite her relatives’ opposition.
Nelson Curi and the other relatives filed a suit against GLOBO, arguing that the use of the images of Aida and her relatives was unauthorized and infringed their rights to privacy. They sought compensation for moral damages.
The First Instance Court and the 15th Chamber of the Court of Appeal of the State of Rio de Janeiro (Tribunal de Justiça do Rio de Janeiro) ruled against the Curis. They held that the program had provided a new perspective on the crime by collecting data from the judiciary archives and from interviews with people who were directly involved with the trial, and noted that the facts were well known by the public and were still discussed in the academic field. The Courts stressed that GLOBO had exercised its right to expression, as a communication company with journalism as one of its activities, and that the Brazilian Constitution grants the freedom of expression, which forbids any censorship, including requiring the prior authorization of the publication of images.
The Curis appealed to the Superior Federal Court (Superior Tribunal de Justiça), which denied the appeal. The Curis then appealed to the Federal Supreme Court (Supremo Tribunal Federal).
Justice Dias Toffoli delivered the judgment for the Court. The main issue before the Court was whether the program broadcast by GLOBO infringed the Curis’ right to be forgotten and harmed their privacy and image.
The Curis argued that they had the right to forget their tragedy in terms of the “right to be forgotten”. They submitted that public knowledge of the facts does not override their personality rights and the unauthorized use of their and their sister’s image entitled them to compensation for moral damages. With reference to Article 1st, item III, article 5th, “caput”, and items III and X, and article 220, paragraph one of the Federal Constitution, the Curis argued that the Court is required to define the concept and limits of the right to be forgotten.
GLOBO submitted that Aida Curi’s case is still relevant to the country because of the aspects of the crime related to violence against women and, as one of her killers was an adolescent, the participation of minors in crimes. It argued that the rights to privacy and image protection do not override the collective interest in knowing a historical fact, and that the right to freedom of expression and information supports the media company’s conduct. GLOBO maintained that the right to be forgotten is incompatible with the right to freedom of information and is not endorsed by the Constitution.
The case centered on the balance between the rights to privacy, image and protection of honor and the right to freedom of expression, information and accurate data. All these rights are protected by article 5th of the Federal Constitution.
The Court analyzed the theory of the right to be forgotten, with an emphasis on whether it is compatible with the Brazilian Constitution. It noted that “the right to be forgotten” was initially used in an essay by French scholar Gerard Lyon-Caen which had discussed the 1967 Appellation Court of Paris case of Landru, which had described “le droit à l´oubli”’ (the right to oblivion). The Court referred to other famous cases about the same subject.: in France, the cases Madame M v. Filipacchi et Cogedipresse, 1983 and Madame Monanges v. Kern et Marque-Maillard, 1990; in Germany, the Lebach I and Lebach II cases; and the American cases of Melvin v. Reid, a.k.a. Red Kimono, 1931, Sidis v. F-R Publishing Corporation, 1940 and Briscoe v. Reader´s Digest Association, 1971. However, the Court held that – despite the use of the term in the cases – this comparative jurisprudence did not deal with a special right to be forgotten but rather applied existing personal rights such as the right to be alone and the protection of image and privacy. Accordingly, the Court held that these cases did not contribute to the discussion on the issue of an autonomous right to be forgotten. The Court commented that the right to be forgotten is strongly associated with data protection in a digital context, with the European Court of Justice case of Gonzáles v. Google Spain and Google Inc as the most prominent example.
The Court stated that judges and legislators around the world misuse the Google Spain judgment to justify the adoption of a general concept of the right to be forgotten distinct from what had been decided. It described the European Court of Justice as not establishing a broad right to be forgotten but rather recognizing the necessity of protecting privacy in specific and exceptional situations. It characterized the right as being related to an individual right of control of indexed personal data when the information, considering the purpose for which it was collected, become inadequate, impertinent, or excessive due to the passage of time (without prejudice to maintaining the hyperlinks where the data can be accessed).
The Court criticized the expression “right to be forgotten”, noting that it has been used to cover an extended range of situations that could not, technically, fall under this category, and stressed the need to identify the essential elements of the right. The first element is that the information must be accurate and lawful, so situations of false or misleading information, or when data are obtained or used by illegal means, are regulated by rights other than the right to be forgotten. A Brazilian example of this is article 12 of the Civil Code which allows for the termination of the issuing of information which is intended for defamatory uses. The second element is that the passage of time would make accurate and lawful information opaque to the point that its publication would not portray the completeness of the facts or the current identity of those involved. Defenders of the right argue that the right is necessary because digital memory denies the effects of time, that the continued existence of information in the public domain creates stigma and damages the mental health of the individuals affected, that public interest in certain information wanes and that there is a right for individuals to change their behavior and personal history.
There are three ways in which the right to be forgotten could be recognized as a fundamental right: that it is explicitly enshrined in the Constitution; that it is an implicit right derived from the right to human dignity or privacy; or that the right integrates the concept of other fundamental rights, such as privacy, honor and image. The Court held that the right did not exist as a general and autonomous right, despite legislative provisions which permit the suppression of data on the grounds of the passage of time. These provisions include article 43 of the Consumer Protection Code, which stipulates that negative data of consumers can be held for five years, and articles 93, 94, and 95 of the Criminal Code which safeguard a convicted individual’s right to keep secret data of the criminal process and conviction. The Court noted that those provisions do not provide the right not to be confronted with information from the past, that time simply cannot transform lawful information into unlawful information, and that although social context can change, the facts do not change and the knowledge of facts is vital for people to improve their relations and society.
Recognizing that there is no absolute right to be forgotten, the Court held that the disclosure of facts depends on other personality rights which limit the right to freedom of expression and information. It stressed that the passage of time did not imply a social duty of forgiveness or a legal prohibition on publishing lawful information from the past.
The Court examined the protection of digital personal data in Brazil and referred to the Personal Data Protection Act, 2018 which does not prohibit the publication of lawful information while protecting individuals’ ownership of their personal data, but does exclude journalism and scientific activity from its application. The Court also noted that the Constitution, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights protect the right to security and privacy. Accordingly, the Court stated that the data protection of an individual could be invoked to support the right to be forgotten when it overrides other people’s right to access information.
In emphasizing the importance of freedom of expression, the Court mentioned Judge Oliver Wendell Holmes’s concept of a free market of ideas and that the Constitution protects it as a fundamental right and prohibits prior censorship. It mentioned previous cases in which the Brazilian courts had held that the Press Act, which contained unjustifiable restrictions to the right, was unconstitutional,
Based on those foundations, the Court, among other cases, had declared the Press Act, which contained unacceptable restrictions to freedom of expression, unconstitutional; had recognized that public demonstrations in favor of the legalization of marijuana were constitutional; and that it was unconstitutional to require prior authorization from the subject of literacy and audiovisual biographical works. The Court emphasized that freedom of expression protects those who communicate expression as well as those who receive opinions or information. It added that the restriction of expression can only occur in specific circumstances, such as when the expression voices rage, intolerance or disinformation and as a way to protect other fundamental rights. It added that even in these situations, expression must not be simply prohibited as courts should order the correction of information, the right of reply, and compensation for damages.
The Court held that allowing a general and abstract right to be forgotten would be an excessive and authoritarian restriction of the right to freedom of expression and information.
Applying the legal principles to the present case, the Court dismissed the Curis’ case and held that none of the communication from GLOBO was abusive or harmed the Curis’ honor or privacy. The Court did not recognize the right to be forgotten and held that, given the public interest in knowing the facts of the case and in discussing violence against women, it was not necessary to require prior authorization for publication of the Curis’ images.
The Court adopted the following thesis: “The idea of a right to be forgotten, understood as the power to prevent, in reason to the passage of time, the publication of truthful facts and data, lawfully obtained, and published by digital or analog social communication media, is not compatible with the Constitution. Any excess or abuses in exercising the freedom of expression and information should be analyzed on a case-by-case basis, based on constitutional parameters, especially those related to the protection of honor, image, privacy, and personality in general, besides the specific civil and criminal rules”.
In a partially dissenting opinion, Justice Nunes Marques noted that the right to be forgotten had been recognized in Brazilian courts in three situations: to prevent the use of old criminal record to impose higher criminal penalties; to impose liability on television companies for broadcasts implying that individuals were involved in criminal activities when those individuals had been found not guilty, had been pardoned, had served their sentence or the statute of limitations had expired; and to de-index individuals’ names on search websites relating to old news. Justice Marques stated that given the extended range of situations, Brazilian law does not protect the right to be forgotten, as recognition of the right would require a clear and precise indication of the people involved, the content, forms of acquisition and the procedures for its safeguard. He said that all the cases mentioned could be based on the abuse of rights provided for in article 187 of the Civil Code, and stressed that the right to be forgotten would have to be introduced through specific legislation and not through judicial interpretation.
In the present case, Justice Marques would have held that GLOBO had abused the right to freedom of information as Aida Curi was not a public person, there had been a significant period of time since the crime occurred, and the family explicitly opposed further reporting and had not authorized the use of images of the family. He would have held there was no justification or public interest for the broadcast. Justice Marques proposed the following thesis: “It is not possible to extract the so-called right to be forgotten from the Federal Constitution of 1988. Possible material or moral damages produced due to abusive exercise of the right to information or index information must be verified afterward (“a posteriori”), based on evidence and elements of the specific case and considering the terms of articles 5th, items IV, V, IX, X and XIV, and 220, paragraph one, of Federal Constitution”
Justice Edson Facchin also delivered a partially dissenting opinion, in which he declared that the right to be forgotten does not limit itself to protecting honor, privacy, and personal data, and that the right is linked to the individual right to self-determination and control of own image and data in the social context and the right of free development of the personality. Justice Facchin would have held that although the Constitution does not expressly provide for the right, it is possible to recognize its foundations from the protection of human dignity, privacy, and informational self-determination. He stressed that in specific cases, when the information has no public relevance, the right to be forgotten could be invoked to protect the individual’s personality rights. However, he held that the right was not applicable to the present case. Justice Faccin proposed the following thesis: “The freedom of expression and the right to information take precedence over the right to be forgotten, regardless of the passage of time. The claim of victims or family members accedes to this primacy when trans-individual interest, the public nature of the information, or the high degree of historical relevance or importance of memory occur. That right, within these limits, is compatible with the Constitution that protects the dignity of the human person (article 1st, item III), the right to privacy, honor, and image (article 5th, item X), and the right to informational self-determination (article 5th, item XII)”.
Justice Marco Aurélio also delivered a partially dissenting opinion, proposing the thesis, “The right to be forgotten is not compatible with the legal order”.
In another partially dissenting opinion, Justice Luiz Fux stated that the right to be forgotten cannot rewrite the past or hinder access to history or freedom of information but could be invoked to protect personal data in cases not concerning public interest, and when searching for happiness depends on the reconstruction of identity from the overcoming of remote traumatic memories. For him, the analysis of the protection of freedom of information about discrediting past facts should examine the historical importance of the fact and public interest in publication, the harm to an individual’s identity, whether there was detailed identification of people involved, whether the individuals did not have prior public notoriety, whether there had been impunity for criminal conduct, the current relevance of the information, a prohibition of defamatory material, the connection between the individual and the published information, and the form in which the information was portrayed. Accordingly, given these factors, the publication of a media report that contains contemporary private facts of victims and their relatives could constitute the abuse of freedom of information. Justice Luiz Fux would have held that in the present case the right to be forgotten was not applicable.
Justice Gilmar Mendes also delivered a partially dissenting opinion and noted that in all the international jurisprudence the courts recognized, in general terms, the right to be forgotten, even if the right was not applicable in the specific circumstances of the cases. He also mentioned article 17 of the EU’s General Data Protection Regulation which confirms the recognition of this right in Europe. Justice Mendes noted that, in Brazil, the protection of human dignity and personality rights especially privacy, honor, and image, imposes recognition of the right to be forgotten, or the so-called right to data erasure, not in an absolute way, but under the the right to freedom of expression and information. In examining the extent of the right to freedom of expression, he stated that academic, journalistic or artistic publication of remote facts, including personal data, must be allowed when there is some current public, historical, or social interest and an anonymization of data of people involved would interfere with the information itself and disturb its comprehension. He added that when there is a decreased access to information, the right should be granted. On the other hand, Justice Mendes explained that the exercise of the right to freedom of expression and information could be illegitimate when it attacks anyone’s privacy, image, honor, or other personality rights, and that the remedies would include allowing the subject the right of reply, awarding compensation, or other legal remedies, notwithstanding that this would occur after the publication of the message.
Justice Mendes would have held that it was unnecessary for GLOBO to have included details of Aida Curi’s personal life and images of her and her family, and that the image, privacy and honor of the Curis was injured, justifying compensation for moral harms. He proposed the following thesis: “In the event of a conflict between rules of equal constitutional hierarchy (freedom of press and information in opposition to the protection of image, honor, and privacy, in addition to the dignity of the human person), the technique of practical agreement should be adopted, requiring punctual analysis on which fundamental right must prevail, for the right of reply and/or compensation, without prejudice to other remedies to be approved by Parliament; Should be considered as predominant factors of this procedure: the time between the fact and the publication; the existence of current historical, social and public interest; the degree of accessibility to the public; and the possibility of anonymized divulgation of the facts without denaturing the essence of the information”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In going against the international jurisprudential trend that recognizes the right to be forgotten, the Court stressed that the mere passage of time cannot transform the lawful publication of facts into an unlawful activity, while noting that the public interest in accessing information outweighs an individual’s right to be forgotten and that the protection of personality rights must be assessed on a case-by-case basis.
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