Content Regulation / Censorship
Association for Freedom of Thought and Expression (AFTE) v. Mohamed Hamid Salem
Closed Expands Expression
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The Appellate Court of São Paulo, Brazil held that the right to be forgotten did not apply in a case where an individual sought the removal of an adverse judicial decision as the individual’s image, honor or personality was not harmed. After an individual had been dismissed from his job he brought a labor suit against his former employer. The suit was unsuccessful and the judgment was accessible on a legal information website, through Google searches (as well as on the Court’s website itself). The individual then brought an application seeking the removal of the judgment from the legal information website and Google searches. The Court of First Instance São Paulo held that search engines do not have the duty of monitoring content and that there was nothing illegal in the information displayed on the legal information website. The Appellate Court agreed with the lower court’s reasoning, and emphasized the constitutional principles of publicity and transparency which require that judicial decisions be accessible.
Wilker Fernandes, a Brazilian national, had been employed by a Brazilian telecommunications company, and after he was dismissed from his position, he filed a labor suit against his employer. Information about his labor claim was available on the internet, through the JusBrasil website page (a legal website owned by Goshme Internet Solutions Ltda.) and through searches on Google. Wilker maintained that he had not been able to get another job following his dismissal and the publication of the information online.
Wilker then filed a lawsuit in the Lower Court of São Paulo against Google and JusBrasil seeking damages and an order that any search results linking to information on the labor suit be blocked. That Court rejected Wilker’s suit on the grounds that neither company committed any unlawful act as the information was public and could be found on the website of the court where the lawsuit was filed itself. The Court also stated that search engines are not responsible for monitoring all the content on the Internet.
Wilker appealed to the Appellate Court of São Paulo (TJSP).
Justice rapporteur Alcides Leopoldo e Silva Júnior delivered the judgment of the Appellate Court of São Paulo. The main issue before the court was whether internet users’ right to be forgotten should be protected and search engine providers and websites should be held liable for the content of search results containing a plaintiff’s name.
Wilker argued that JusBrasil and Google violated his right to image and privacy by providing information about the labor suit to which he was a party, and harmed his opportunities in the employment marketplace.
Google argued that blocking search results would not prevent the access to the content, as it could be accessed directly on the website that hosts it – in this case the Court website where the lawsuit was filed. It also submitted that Article 19 § 1º of Brazil’s Internet Bill of Rights (Law n° 12.965/2014 – “Marco Civil da Internet”) does not allow the removal of content through generic requests. Google maintained that there was no unlawful act committed by the company since information on lawsuits is public and can be accessed on the courts’ own websites.
Goshme argued that it acts only as an information search engine, by locating information from lawsuits all over Brazil and making that information available to users on the Internet. It submitted that it did not insert and maintain the content on the Internet, and, thus, could not be held liable for the content it locates. Goshme stated that it had already removed the content involving the labor lawsuit to which Wilker was party at his request from its website and that the information was still available on the labor court website – over which Goshme had no control and so would be unable to remove the content.
The Court accepted that the information found on JusBrasil could be also obtained from the website of the labor court where the lawsuit was filed. It held that neither Goshme nor Google could be held liable: Goshme merely gathered information from the courts about trials in Brazil and Google was merely a search engine, with no control over the content of the information to which it provided access.
The Court held that the right to be forgotten could not be applied in the present case, as judicial decisions (except in cases in which secrecy is granted) must respect the constitutional principles of publicity and transparency, protected by articles 5, subparagraphs XXXIII and LX, and 93, subparagraph IX of the Constitution. The Court stated that it is only where non-publication is necessary to preserve the right to intimacy of a party involved in the lawsuit can a judicial decision not be publicly accessible. The Court noted that in all other cases the public interest in information will prevail over the privacy of individuals.
The Court referred to the Google Spain v. AEPD case, and stated that the European Court of Justice had established the principle that data may be deleted if they are “inaccurate, but in particular if they are inappropriate, irrelevant or excessive in relation to the purposes of processing, if they are not up to date or if they have been stored for longer than necessary, unless their storage is required for historical, statistical or scientific purposes”. The Court found that this reasoning could not be applied to Wilker’s case, because the information on the labor lawsuit he filed did not offend his private life, honor, image or any other right of personality.
The Court rejected Wilker’s appeal and affirmed the court of first instance’s decision.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision expands freedom of expression by establishing that information related to judicial decisions is protected by the principles of publicity and transparency, and that it is only in specific cases – where a party’s right to intimacy requires confidentiality of legal proceedings – that judicial decisions can be hidden.
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