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[#4][special week] RTBF in the Brazilian courts

20170126_ILAB_SEMANA_ESQUECIMENTO_EN_W-01-05-05

How Brazilian courts have been dealing with issues related to the recognition of a “right to be forgotten”? It is true that the discussions around a “right to be forgotten” gained great visibility with the decision of the Court of Justice of the European Union in the Costeja vs. Google Spain case (InternetLab’s RTBF Week dealt with the topic last Tuesday). However, even before this decision, other requests based on the RTBF had already been brought to Brazilian courts as a way of protecting personality rights, even if without the “RTBF” label. Learn more about the main cases already faced by Brazilian courts on this topic:

Xuxa Case

The first case of widespread repercussion faced by the Superior Court of Justice originated in a request filed by the television presenter Xuxa against Google. She wanted to disassociate her name from the movie “Amor Estranho Amor” (“Love, Strange Love”), in which, in her youth, she erotically performed with a young boy. In other words, Xuxa seeked the recognition of the right of having this part of her artistic career forgotten — in other words, the right of having it removed from Google’s search results.

Initially, Xuxa requested to the 1st Civil Court of Barra da Tijuca, in Rio de Janeiro, the removal of results related to the search of the expression “Xuxa pedophile” or any other search that associated her name, written in part or in full, and independently of the spelling, to any criminal offense. The judge granted Xuxa preliminary injunction and ordered Google to hidden, in its search engine, any results relating to the search for the expressions “Xuxa”, “pedophile”, “Xuxa Meneghel”, with these or other spellings, isolated or together, with or without quotation marks, for the period of 48 hours from its judicial notification.

After Google filed an appeal against the decision, the case reached the 19th Civil Chamber of the Rio de Janeiro Court of Justice (TJRJ) (in Portuguese). TJRJ ordered the company to remove specific images from the search engine results, based on the constitutional protection of the right to image (article 5, items V and X of the Brazilian Constitution). However, TJRJ did not request Xuxa to present a list with the URLs where these images were hosted.

The case was then taken to the Superior Court of Justice (STJ) by means of the Federal Appeal No. 1,316,921 (click on “consultar” after accessing the link for more information, in Portuguese). In the trial, in June 2012, the Rapporteur (Minister Nancy Andrighi) understood that the order issued by the TJRJ was technically impossible to be complied with. Even if the decision was amended to become feasible — that is, demanding the indication of the URLs mentioned above — it would be dismissed. That is because Xuxa should have filed a request against the one actually accountable for her image violation — and not the one who only made the access to the harming content easier. The Third Chamber of the STJ concluded  that companies should not be compelled to restrict search results carried out on their website, since this would violate the constitutional right of access to information. On these grounds, the Third Chamber granted Google’s request, repealing TJRJ’s decision and denying Xuxa of her right to be forgotten.

To read in full the decision of the Third Chamber of the STJ, click here (in Portuguese).

Aída Curi Case

In 2008, the television program “Linha Direta — Justiça”, of Rede Globo, aired a documentary about the homicide of Aída Curi, which happened in 1958. The victim’s relatives requested compensation for moral damages, arguing that the exhibition of the documentary made them relive pains of the past. They additionally requested indemnity in connection with material damages caused by the exploitation of the victim’s image with economic purposes.

The judge of the 47th Civil Court of Rio de Janeiro considered the relatives’ request unfounded, arguing that the facts presented on the show were of public knowledge and, in the past, were widespread by the press. Rede Globo was complying with its duty to provide information and foster the debate about the case. The judge also understood that there was no evidence of profit in connection with the usage of Curi’s image by Rede Globo. The decision was upheld by the 15th Civil Chamber of the TJRJ. Thereafter, the case was taken to the Superior Court of Justice.

In the STJ (click on “consultar” after accessing the link for more information, in Portuguese), Aída’s relatives claimed the right to have the tragedy they went through over fifty years ago forgotten, a right that was violated by Rede Globo when it aired the documentary about the crime without the authorization of Aída’s family members. In the trial, in May 2013, the Fourth Chamber of the STJ denied Aída’s family requests when balancing the right to be forgotten with the need for a historical record of the case. The Fourth Chamber argued that the  documentary was aired fifty years after Aída’s death, thus, unable to cause moral consternations that could base a claim for indemnity. The Chamber mentioned, additionally, the freedom of press as a legal ground for the denial of the requests.

To read the decision of the Fourth Chamber of the STJ in full, click here (in Portuguese).

Aída’s family took the case to the Brazilian Supreme Court (STF) through the Constitutional Appeal No. 833,248 (in Portuguese). At the moment, the Court has already recognized the constitutional relevance of the case, what means that STF’s decision should guide all Brazilian courts on the matter. The case is still pending trial.

Candelária Massacre Case

Similarly to the Aída Curi case, the Candelária Massacre involved the airing, in 2006, of the TV show “Linha Direta — Justiça”, by Rede Globo. This time, the show reconstructed the sequence of events leading to several killings in the Church of Nossa Senhora da Candelária, on July 23rd 1993, in Rio de Janeiro. After the investigations were concluded, a group of policemen and a civilian were arrested, accused of committing the crimes. Years later, on the jury trial, the civilian was unanimously acquitted by the members of the jury.

He was sought by Rede Globo for an interview. He declined the invitation for the interview, but his name was still mentioned when “Linha Direta — Justiça” was aired, in 2006. Arguing that his rights to peace, anonymity and privacy had been violated and that the exposure of his name affected his professional life — besides putting his life at risk in the community where he lived –, he claimed for indemnification .

After balancing the public interest in the show, which portrayed a “traumatic event in national history”, with the individual right to anonymity and to be forgotten, the judge of the 3rd Civil Court of Rio de Janeiro concluded that the former should prevail, dismissing the indemnity claim.

At TJRJ, the decision was reversed in order to demand Rede Globo to pay R$50.000,00 (fifty thousand reais) in connection with the indemnification claims. The 16th Civil Chamber of TJRJ understood that the right/duty of the press to provide information should prevail over the individual right to image, since Rede Globo had exercised its rights in an abusive manner. According to TJRJ,  the events of the Candelária massacre could be described without mentioning the civilian’s name, who was involved in a merely incidental manner in the case and was later acquitted on the jury trial.

Thereafter, Rede Globo took the case to STJ (click on “consultar” after accessing the link for more information, in Portuguese), arguing that no right to be forgotten nor “to be left in peace” should prevail over the TV channel’s right to provide information. In addition, it argued that it was impossible to reconstruct the events without mentioning the civilian, since he was a key element of the police inquiry investigating the homicides.

The Fourth Chamber of the STJ, however, considered the reconstruction of the events without his name and image to be perfectly feasible, dismissing Rede Globo’s appeal. In the judgment, in May 2013, STJ recognized the strong relationship between freedom of press and democracy. However, it emphasized that it was possible to limit freedom of information in order to protect the inviolability of the private life, intimacy, honor and image of people. This is especially true in order to fight media abuse, which usually oversimplifies crimes by stigmatizing criminal offenders and praise the “good citizen”. In the Candelária Massacre case, the “right to be forgotten” would mean, according to the STJ, a correction to an unfair police inquiry, based on the idea of resocialization that grounds the seal of the criminal records of offenders.

Despite dealing with the broadcasting of one’s image on the television, the decision highlights that “right to be forgotten” guidelines can be transposed to the Internet. However, they would have different outlines there.

To read in full the decision of the Fourth Chamber of the STJ, click here (in Portuguese).

Rede Globo took the case to STF by means of the Constitutional Appeal No. 789,246, still pending trial (link in Portuguese).

S.M.S vs. Google Case

Another case involving a deindexation request and the limits of search engines’ liability was recently decided by the STJ.

At lower courts, S.M.S requested Google to block search results related with her name on its website, since it could lead to pages that contained nude images of her. The request was denied by the judge of the 30th Civil Court of São Paulo. He argued that S.M.S should have filed her claim against the one hosting her images and not Google. Therefore, her claim was dismissed.

S.M.S took the case to the São Paulo Court of Justice (TJSP) and had her request granted. The 2nd Chamber of Private Law of TJSP understood that her images spread on the Internet were not of public interest, merely exposing her intimacy.

Thereafter, the case was taken by Google to the STJ (click on “consultar” after accessing the link, for more information, in Portuguese). The company argued that it was impossible to block the key-words that led to the nude images, since the Brazilian Internet Civil Rights Framework requires the clear and specific identification of the harmful content to excluded.

In the judgement, in November 2016, the Third Chamber of the STJ mentioned it’s decision on the Xuxa case, highlighting that search providers “(i) are not liable for the content of search results carried out on their website; (ii) cannot be compelled  to  previously filter search results carried out by each user; and (iii) cannot be compelled to eliminate from their system results related to a specific  term or expression”.

According to the Third Chamber, the fact that the search engines do not host the content one wants to forget needs to be taken into account,  since they merely help users to find that content by providing them with links. These links are public, prone to being found without the use of the search  providers. Thus, their liability should be limited to the nature of their activity, which does not include the filtering of content in searches carried out by each user.

Thus, the Third Chamber concluded that S.M.S.’s claim should have been filed against the one responsible for hosting her intimate photos on the Internet, since there is no “legal grounds in Brazil” for demanding Google to implement the right to be forgotten. Therefore, STJ denied S.M.S.’s request.

The Third Chamber mentioned that the enforcement of the Brazilian Internet Civil Rights Framework did not change STJ’s understanding in the Xuxa case, since it does address the right to be forgotten. Additionally, the Third Chamber highlighted that the solution given by the Court of Justice of the European Union in the Costeja vs. Google case would not be appropriate Brazil’s current context, due to differences in legislation — above all, the lack of legislation on data protection in Brazil.

To read the decision of the Third Chamber of the STJ in full, click here (in Portuguese).

Team responsible for the content: Thiago Dias Oliva (thiago.oliva@internetlab.org.br), Maike Wile dos Santos (maike@internetlab.org.br), Dennys Antonialli (dennys@internetlab.org.br) and Francisco Brito Cruz (francisco@internetlab.org.br).

Translation: Ana Luiza Araujo (analuiza.araujo@internetlab.org.br)