Legal analysis

Brazil: Bills on the “right to be forgotten” should be rejected

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ARTICLE 19

14 Jun 2017

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A new legal analysis was launched this week by ARTICLE 19 Brazil, which looks in detail at four bills making their way through the Brazilian Congress, all of which aim to regulate the so-called “right to be forgotten”.

Based on ARTICLE 19’s policy The Right to Be Forgotten’: Remembering Freedom of Expression, the analysis looks at the considerations which ought to be present when adopting laws that enable individuals to delist their digital histories.  

International standards suggest that a specific law on the subject is not only unnecessary, but may also unduly restrict freedom of expression in the country. Therefore, ARTICLE 19 Brazil recommends that the Congress reject the bills on this basis.

In the digital context, the “right to be forgotten” makes possible the idea that individuals may delist information about themselves.

The debate around the issue gained momentum when in 2014 a legal decision from the European Union Court of Appeal favored the Spanish Mario Costeja González, who had filed a lawsuit against Google requesting the removal of results from information searches made on the basis of  his name. Following a decision, several European countries have begun to draft or implement  specific laws on the subject.

Based on the analysis of the four bills ARTICLE 19 considers that only one of them provides limits on the application of the “right to be forgotten” (in the context of advice to search engines when considering the idea of “de-indexation”).  A further bill also determines that the decision to remove content may only be granted by a court.  

However these do not provide sufficient protection.  One of the many weaknesses revealed in our analysis is that none of the bills  consider situations where  the applicant is a public figure.  According to international standards, the “right to be forgotten” in such a case would not apply.  Nor do any of the bills provide explicit language about the need to protect the right to freedom of expression.

As Laura Tresca, ARTICLE 19 Brazil’s digital rights specialist and responsible for the analysis says: “We believe that existing norms that regulate areas, such as privacy, serve as a reference for cases where there is a requirement to restrict access to published content”.

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