Case Summary and Outcome

The Court of Justice São Paulo, Brazil dismissed an appeal after a lower court refused a request for the de-indexing of articles from online search results. A Brazilian individual had been linked to a financial crime “mafia” and – although the criminal process was eventually terminated – there were various articles about his alleged involvement available online. The individual requested that search engines remove results about that criminal involvement from search results of his name. The lower court initially granted the de-indexing interim injunction, but later revoked that interim relief. The lower court held that the interests of freedom of expression of the press and society’s right to access to information should prevail in this situation. The appellate court dismissed the appeal, confirming the lower court’s decision.

Facts

In 1999, a Brazilian individual Gilberto Trama was investigated and denounced for involvement in a criminal scheme known as the “Fiscal authorities’ Mafia”. However, the criminal process considered the punishment terminated, given that the eventual crime that Trama committed had already expired.

Trama requested that the search engines, Google, Bing and Yahoo, remove links of articles about his alleged involvement in the Fiscal Authorities Mafia from search results of his name. The search engines did not do so.

In 2015, Trama brought an action against the search engines, Google Brasil Internet LTDA, Microsoft Internet LTDA, and Yahoo do Brasil Internet LTDA, seeking the de-indexing of the links to articles about his alleged criminal involvement. He also sought compensation for non- pecuniary damage of R$20,000.00.

Decision Overview

In the court of first instance, Judge Ana Carolina Vaz Pacheco de Santos delivered the interim judgment, and Judge Mariana Dalla Bernardina the final judgment. The central issue for the courts’ determination was whether the search engines were required to de-list articles about Trama’s alleged criminal activity.

Trama argued that he was entitled to the right to be forgotten due to the legal protection of intimacy, image, and private life and guarantees in the Federal Constitution (art. 5, X, Constituição Federal, 1988). He also stressed that he had not been convicted as the eventual crime had been barred at the time of the decision.

Google highlighted the importance of the right to information and freedom of the press, arguing that these rights should prevail over the right to be forgotten. The search engines also submitted that Trama had only provided generic URLs in his petition and so de-indexing was not possible. They argued that art. 19, para. 1, Law nº 12.965/2014 (Marco Civil da Internet) establishes that removing content without proper specification constitutes censorship. The search engines maintained that they do not host journalistic articles, but are merely providers and so deindexing the URLs would only pull the news out of the search results but not delete them from their source sites.

In the interim proceedings, Judge Ana Carolina Vaz Pacheco de Santos granted injunctive relief and ordered the de-indexing of news links from the search engines. The judge found the existence of the danger of irreparable damage or damage that is difficult to repair (periculum in mora), as the links indexed in search engines infringed the protection of Trama’s constitutional rights to intimacy, image, and private life.  The judge referred to statement 531 of the VI Conference on Civil Law, which states: “damage caused by new information technologies has been accumulating today. The right to be forgotten has its historical origin in criminal convictions. It appears as an important part of the ex-detainees right to resocialization. It does not give anyone the right to erase facts or rewrite history. Still, it only ensures the possibility of discussing the use that is given to past facts, more specifically the way and purpose with which they are remembered” [p. 90]. The judge also referred to a case in which the São Paulo Court of Justice had held that there was no justification for keeping publications on crimes that took place long ago.

However, the injunctive relief was revoked in the final process as Judge Mariana Dalla Bernardina rejected the claim. The judge acknowledged the fundamental rights conflict but found that, in this case, the right to freedom of expression of the press and the right to information of society should prevail as that would be more beneficial to the community. The judge highlighted that the articles were factual, and narrated the facts objectively without judging Trama’s conduct. The judge referred to a Court of Appeals of São Paulo decision which had considered the public interest in the publication of reports. 

Trama filed an appeal to the 10th Chamber of Private Law of the Court of Appeals of São Paulo.

Judge Elcio Trujillo delivered the judgment of the Court of Appeals and denied the appeal