A critical analysis of the federal supreme court's current position on the right to forgetting

Abstract

The plenary of the Federal Supreme Court (STF), in the judgment of Extraordinary Appeal 1.010.606/RJ, reporting by Dias Toffoli, by majority decision, established the thesis of general repercussion in the sense that 'the idea of a right to oblivion, understood as the power to prevent, due to the passage of time, the disclosure of facts or truthful data lawfully obtained and published in social communication media – analogue or digital. Any excesses or abuses in the exercise of freedom of expression and information must be analyzed on a case-by-case basis, based on constitutional parameters, especially those relating to the protection of honor, image, privacy and personality in general, and express and specific legal provisions in the criminal and civil spheres. Based on this decision, there is no need to speak of the right to be forgotten as an abstract and autonomous fundamental right. However, despite the current understanding, it is understood that the mere application of weighting values, to be carried out on a case-by-case basis, is not sufficient to verify possible excesses or abuses in the exercise of freedom of expression and information. This is because the STF itself did not define the technical criteria or parameters that must be followed by the judge to conclude whether the exercise of freedom of expression or opinion offended or not aspects inherent to personality rights. That's why it is said that the STF decided, but it didn't. The research will use the technique of bibliographic, legislative and jurisprudential review on the subject, also using works from judgments and foreign doctrine, in an attempt to present the reader with a critical position in relation to the STF decision.

Keywords: Right to be forgotten. Weighting. Freedom of expression. Personality rights. Absence of criteria or parameters.