By Dennys Antonialli, Francisco Brito Cruz and Mariana Valente

It can be a crush, a job applicant, an artist or a politician: it is hard to find someone who has never searched information about somebody on the Internet. There’s even a specific term for it: “stalking”. The easy access to this digital database about people’s life changed our relation to memory: if before the internet it was easier to let these information be forgotten, today, it’s hard to accept that there is nothing on the records about someone.

It’s not always that these registers are wanted by the person to whom they refer to. For example, it was the case of a citizen whose name is attached to news published in 2007, when he was arrested for suspicious participation in a skinhead group. A few years after the publication of these stories, it is still possible to find them when his name is typed into search engines. He alleged that it was causing him embarrassment and difficulties to get a job.

To try and get rid of these consequences, the man decided to go to Court, trying not only to prevent Google from showing the articles when someone searched for his name, as well as demanding that the news agencies responsible for the reports (O Estado de São Paulo, Globo e UOL) were forced to delete them.

For the man, this would be another case of the so called “right to be forgotten”. Essentially, he did not question the veracity of the news, but defended that his individual and very personal interest (of not having his name associated to past facts that damaged his image) should prevail over the collective interest (of having access to the news).

His arguments convinced the judge of the first instance, who determined the press to delete the news from their websites. The same judge refused, however, the request to prevent Google from associating the plaintiff’s name with results connected to the news, understanding that the search engine is not responsible for the publications.

From their parts, the press agencies responsible for the news decided to appeal, alleging, for their defense, that the decision impaired constitutional rights such as freedom of the press, the right to be informed and the right to collective memory. They also highlighted the importance of keeping journalistic news as a fundamental resort to future generations, above all as a means for social analyses and for social and historic research.

In a recent decision, the Court of Justice of São Paulo reverted this understanding of the judge, determining that the news should be kept online. For the associated judges, the fact that the news are not fake (their veracity was not even questioned by the plaintiff) prevents them from being just deleted. The act of deleting them would be equal to the orders given “in one of so many less enlightened moments in the History of Humanity, for the burning of books, the destruction of libraries”.

In fact, one has to be very careful when evaluating requests based on “the right to be forgotten”. If granted in a generic way, it can be used as a powerful eraser that deletes parts of history, takes news off the air and damages the access to information. In the hands of public figures, like politicians and governors, the right to be forgotten can even be a more dangerous device, serving to extirpate from memory facts, accusations and criticisms. During the last presidential elections, for instance, an attempt by the then candidate for the Presidency of the Republic, senator Aécio Neves, became news as he solicited for Justice to stop search engines from showing results that associated his name to suspicions of diversion of public funds during his mandate as governor of the state of Minas Gerais.  

The discussion about the right to oblivion does not happen only in Courtrooms. Nowadays, different bills that address the issue are under way, like the bill 7881/2014, by congressman Eduardo Cunha, the 1676/2015 bill, by congressman Veneziano Vital do Rêgo and the 1589/2015 bill, by congresswoman Soraya Santos (that runs along the 215/2015 bill, called “Spy Bill” by activists for concentrating a series of polemic initiatives in terms of privacy and freedom of speech). Opening way for the removal of contents based on generic concepts like “irrelevant or obsolete data” or “facts that are not of public interest”, the projects can promote a real collective amnesia and, even worse than that, a quite selective one.

Translation by Ana Luiza Araujo