The recent decision by the Supreme Federal Court, which deemed the right to be forgotten incompatible with the Federal Constitution, resolves essential aspects, but does not end the discussion.
It is understood that the right to be forgotten is a label applied according to excessively broad criteria, which ends up hindering the resolution of simpler and more objective demands, where erasure or censorship is not sought.
It is argued that search providers go far beyond simply providing access to information and that they adopt criteria that contribute to perpetuating errors that generate serious embarrassment, such as highlighting outdated or false information to the detriment of new and true facts.
It proposes that the right to archiving, understood as the re-indexing or de-indexing of information, is a technically viable solution and perfectly aligned with constitutional principles.
It concludes with the understanding that the proposed solutions, although already known, depend on a new understanding of what the right to be forgotten is and the role of search providers in making that right a reality.
A right in search of meaning.
The Brazilian Supreme Court recently ruled on the so-called " right to be forgotten ," concluding that it is incompatible with the Federal Constitution.
It established a precedent of general repercussion by denying the Extraordinary Appeal (RE) 1.010.606, known as the Aída Curi case . Although the ruling resolves central aspects of the issue, the discussion seems far from over and deserves further exploration.
Furthermore, the debate regarding the scope of the Supreme Court's decision is already underway. The Aída Curi case, the first in which the principle was applied, has already been returned to the 4th Panel of the Superior Court of Justice for re-analysis and possible retraction.
Furthermore, the court's vice-presidency also released for re-analysis Special Appeal (REsp.) 1.660.168, related to a 2018 case in which the right to be forgotten was applied to determine that Yahoo, Google, and Microsoft filter information about alleged fraud in a public competition.
Furthermore, it seems essential to work on a more adequate definition of the meaning and scope of the so-called right to be forgotten. Common usage has adopted the expression popularized by European law, the "right to be forgotten ." But, while it has already been defined and framed there, here it is still being used almost universally.
The right to be forgotten encompasses claims of a diverse nature, most frequently de-indexing, the removal of content from the internet, and, as in the case discussed by the Supreme Federal Court, preventing past events from being revived.
As an idea, the right to be forgotten is even more imprecise. The expression seems to be shrouded in a cloud of negative connotations, associated with attempts to change, censor, or erase history.
The crux of the matter is that overly broad or imprecise interpretations always create additional difficulties in resolving potentially more limited and objective demands, thus hindering the administration of justice.
This is the point that interests us. Outdated, inaccurate, or even false information is abundant on the internet. It creates serious embarrassment for its victims, who face obstacles, sometimes insurmountable, in obtaining redress.
In many cases, the goal is not to erase past facts or even prevent access to them, nor even for them to be forgotten. The intention is simply archiving, as was the norm in the pre-internet era. That is, to allow certain information to cease being highlighted by search engines. Indeed, this is generally what is referred to in European law when the right to be forgotten is invoked.
If, instead of forgetting, we think of archiving, we will see that there is not necessarily a conflict between the interests of society and individuals seeking some kind of redress for the exposure of inappropriate information.
In April 2018, the online magazine Consultor Jurídico reported a decision by the 4th Chamber of Private Law of the Court of Justice of São Paulo, which authorized a doctor to change his name in order to avoid being associated with fake news found on the internet that caused him serious embarrassment, losses, and difficulties in practicing his profession.
Despite the doctor's innocence being proven, Google continued to display links to old and false news related to the crime (4). The case rapporteur, Judge Ênio Santarelli Zuliani, proposed an unusual solution. Seeing no other alternative, he decided that the doctor could change his name.
The right to dismissal proposed here seems to be a better solution for this type of case, which is extremely common in courts. The case is emblematic.
The billion-dollar battle for the first page of Google.
There is a fundamental detail in defense of the archiving thesis. By default, Google offers ten links per search, and 60% of people are satisfied with what they find on the first page among those links.
Therefore, there is a constant battle for front-page space, involving everything from companies selling products to individuals trying to build a reputation.
According to a report in the American edition of Forbes magazine, companies spend $80 billion annually on efforts to position their products and services in this space. In other words, what appears first makes all the difference, because most people will never go further.
Let's return to the case of the doctor. Every time his name was searched, Google displayed the same old, false information on its first page about a crime he did not commit, making it difficult to access the truth.
His behavior was as reprehensible as an editor who insisted on publishing the same headline, with false information, every day.
A new perspective on search providers.
Moving forward in this discussion depends on a more detailed understanding of how search providers function and their purposes. Eventually, it may require a review of concepts that have long guided court decisions.
As is well known, the liability of search providers like Google for the content they present has been systematically dismissed. One of the milestones in consolidating this understanding is a 2013 decision by the Superior Court of Justice (STJ) regarding the case of television presenter Xuxa Meneghel.
She requested the removal of content referencing a nude scene she starred in alongside a teenager in a film shot early in her career. In a significant ruling by the reporting judge, Nancy Andrighi, it was understood that search engines only indicate where content can be found and are not responsible for it. Later, this interpretation was incorporated into the Brazilian Internet Bill of Rights (Law No. 12.965/2014).
However, although it doesn't produce information, it does a job very similar to what any editor does, namely: collecting, selecting, prioritizing, and publishing the information produced by the reporter, sending the most important information to the front page – where it attracts more attention – and the rest to the footnotes, where almost nobody reads.
The General Data Protection Law, Law No. 13.709/2018, provides important clues for rethinking the limits of Google's responsibility. According to item X of article 5, the law defines the processing of personal data as:
"any operation performed with personal data, such as those relating to collection, production, reception, classification, use, access, reproduction, transmission, distribution, processing, archiving, storage, elimination, evaluation or control of information, modification, communication, transfer, dissemination or extraction".
The list accurately describes some of the activities carried out by Google. The possibility of classifying Google as a data processing agent, under the terms of the LGPD (Brazilian General Data Protection Law), is a discussion that deserves attention, even if limited to a theoretical exercise in order to better understand the role of search providers.
Conclusion
At this point, it's worth returning to the question. With so much algorithmic intelligence, what explains the fact that Google repeatedly presents old and false news prominently, while hiding updated information? Why, unlike newspapers, does Google present the same outdated information in its "headlines" for decades?
The doctor mentioned here, whose case was discussed by the São Paulo Court of Justice and who won the right to change his name, endured the same hardships faced by a Spanish citizen who became famous for his fight against algorithms.
Mario Costeja, indignant at the outdated information he found about himself on Google, took his case to the highest level of discussion, until the Court of Justice of the European Union recognized what became known as the Right to be Forgotten.
In fact, Costeja obtained the right to break the links between his name and outdated news presented by Google. The information is still there, in the media outlets that published it. Perhaps, in this case, the so-called right to be forgotten was an exaggeration, an abuse of rhetoric.
The European court's decision compelled Google to receive and evaluate de-indexing requests from all European citizens. According to a report by NPR (National Public Radio) in the United States, 650 requests were submitted up to 2018.
The granting of this right is subject to a series of criteria, which include the relevance of the information, the people involved, the existence of falsehoods and, above all, the public interest in the fact that is intended to be de-indexed.
Although limited, archiving through reindexing proves to be a suitable solution in certain cases, as it does not hide information, nor does it create insurmountable barriers to accessing it. It does not erase. It does not hide. It only prevents the display of false and irrelevant information.
Many of those who call for the information to be forgotten would probably be satisfied with a simpler and more efficient solution: archiving, by breaking links, or reindexing, in order to give more prominence to new and correct information, at the expense of old and false information. It is technically feasible and fully in accordance with the Supreme Court's decision.
Archives have always been seen as safe places to preserve history. And they continue to be.
BIBLIOGRAPHIC REFERENCES
BODEN MA, Artificial Intelligence. São Paulo. Editora da Unesp, 2020.
DONEDA, D., From privacy to the protection of personal data. Rio de Janeiro: Renovar, 2006.
HOFFMAN-RIEM W., General Theory of Digital Law. Rio de Janeiro. Forense Publishing House, 2020.
MENKE F., VALLE DRESH RF, General Data Protection Law. Indaiatuba. Foco Jurídico Publishing House, 2021.
SARLET, IW FERREIRA NETO, AM, The right to be forgotten in the information society. Porto Alegre. Livraria do Advogado, 2019.
SCHMDIT E., ROSENBER J., How Google Works. New York. Grand Central Publishing, 2014.
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Author: Alexandre Dry
Lawyer specializing in reputation management, privacy, and information. Journalist, previously worked for Folha de S.Paulo, Veja, and Exame. Holds degrees in social communication and law. Currently pursuing a postgraduate degree in Digital Law.