Case Summary and Outcome

The Brazilian Superior Court of Justice held that Google was not obliged to remove all search results linked to an individual’s name. After an individual filed a suit requiring Google to remove all results as they may lead to nude photographs of her, the Court of First Instance dismissed the case on procedural grounds – that Google was not a legitimate party to the suit – but the Court of Second Instance then found in her favor, ordering the removal of the links on the grounds that the content was not of public interest and of an intimate nature. The Supreme Court of Justice agreed that Google was not a legitimate defendant, and recognized the absence of an obligation on search engine providers to remove search results of a particular term, expression or photo, without a specific indication of the content’s location.

Facts

A Brazilian individual, S.M.S, brought a lawsuit against Google Brasil Internet Ltda seeking an order that Google block any search results associated with her name which may lead to websites with nude photographs of her.

The first instance court rejected the suit, on the grounds that two procedural requirements were not met, namely the need for judicial protection and the illegitimacy of Google to appear in the suit as defendant.

S.M.S. then appealed to the Second Instance of the State Court of São Paulo. The Court granted the appeal on the grounds of the right to human dignity and the right to be forgotten, holding that pages containing her nude photographs does not constitute public interest content, as they relate only to the private life of the exposed person.

Google filed a special appeal with the Superior Court of Justice, seeking an order affirming the first instance decision due to the company’s passive illegitimacy in the lawsuit.

Decision Overview

Justice Rapporteur Nancy Andrighi of the third panel of Superior Court of Justice assessed the special appeal. The main issue before the Court was whether internet users’ right to be forgotten should be protected and search engine providers and Google should be held liable for the content of search results containing the plaintiff’s name.

Google argued that there had been violation of article 19,  § 1º of Brazil’s Internet Bill of Rights (Law n° 12.965/2014 – “Marco Civil da Internet”). It submitted that it was impossible to block the search results that led to the nudity images, because the Brazilian Internet Bill of Rights requires a clear and specific indication and individualization of the content the person seeks to be removed, in order to allow the search provider to locate the material. S.M.S. had requested a total block of all results associated with her name, without specifying the content to be removed.

The Court held that the right to be forgotten must be recognized, but only when the circumstances demand so, due to its importance for the protection of privacy. It cited the soft law norm “Enunciado  531 na VI Jornada de Direito Civil”, which states that “The protection of human dignity in the information society includes the right to be forgotten.” The Court referred to Superior Court of Justice precedents which state that this right is grounded in general principles of law and on the Consumer Defense Code “which imposes a time limit on the use of truthful information that is unfavorable to the consumer”.

The Court referred to the European Court of Justice case of Google Spain v. AEPD, to highlight that the right to be forgotten is based on a legal data protection framework in Europe. The Court found that this case was not applicable to the present case as it would create an obligation for the search engine controller to determine what could or could not be accessed by the users of the platform – which was not currently prescribed by domestic law. The only source of a right to be forgotten in Brazil could be article 7, I and X, of Brazil’s Internet Bill of Rights, as there was no effective data protection legislation at the time. In terms of Brazil’s Internet Bill of Rights, any user of a platform has the right to have his personal data definitively deleted as long as (i) the individual himself has provided the information to (ii) an internet application provider. The Court accepted that Google would be an internet application provider, as it provides services related to the operation of the World Wide Web, by making available tools that allow the user to find websites or other resources, according to the search terms entered in the search service. The Court stated that filtering the content of searches is not an intrinsic activity of these platforms because it is impossible to have prior control over the content that comes from the search results. Accordingly, the Court held that providers such as Google should not be liable for blocking content.

Accordingly, the Court granted Google’s Special Appeal to affirm the first instance decision due to the company’s passive illegitimacy in the lawsuit. The Court noted that Google did not store the information that S.M.S. sought to have deleted and, at the time, there were no Brazilian legislative obligations that required search providers to implement the right to be forgotten on information that was not provided by the user. The Court stated that S.M.S. should have addressed her request to the person responsible for making the intimate photos available on the Internet, as there was no regulation in the Brazilian legal system capable of requiring Google to implement the right to be forgotten.