Editing and forgetting: Reflections on the right to be forgotten and memory on the Internet

by Digital Rights LAC on June 30, 2014


Alexandre Pacheco da Silva*
Mônica Steffen Guise Rosina**

Typing your name in the Google search bar may not always be a pleasant experience. Through homonyms, pictures, profiles on social networks and news in the media, you might find yourself faced with information that makes you uncomfortable (e.g. those compromising photos you would like to forget).

In 1998, the Spaniard Mario Costeja González, indebted to the Spanish social security authorities, had his house auctioned off towards the payment of the debt. The auction was announced in the pages of the Vanguardia Ediciones SL’s (“Vanguardia”) company paper, between the months of January and March of that year. Twelve years later, looking up his own name on Google, Mario found news clippings about the debt and the auction amongst the first search results. With the help of the Spanish Data Protection Agency, he took administrative and judicial measures against Vanguardia and against Google, so that the information about that difficult moment in his life be removed from search engines.

This year, on May 13th, the European Court of Justice ordered that the content be removed, recognizing the Right to be Forgotten in its decision. The Court considered the 95/46/EC Directive, on the protection of users’ personal data, to be applicable in this case, arguing that – because they control the processing (recovery, filing, organizing and disposal) of the data of those that make use of their services – operators of search engines on the Internet should be responsible for the removal of content which violates an individual’s privacy.

Our view is that the European Court’s decision is problematic for two reasons: (i) it does not discriminate the type of information which may be subject to removal, such as the important differentiation between truthful information (fact) and, for example, slander; and (ii) it does not evaluate the consequences of inserting “editorial control” or “filters” in the decentralized logic of production and dissemination of content on the Internet; in other words, the European Court doesn’t contemplate the right to alter history, using the personal lives of Internet users.

The decisions of Brazilian courts however, have addressed these issues. In the Special Appeal n.º 1.335.153 –RJ, the Superior Court of Justice (STJ) examined a claim for compensation from the siblings of Aida Cury, a victim of sexual abuse and homicide in 1958, who were outraged after having watched a reconstruction of Aida’s case on a police show, Linha Direta (Direct Line), which aired on Globo Television Network. According to the victim’s siblings, the mere exhibition or broadcasting of the story made the family relive the pain of the loss. The STJ not only denied the family’s plea, but went on to reaffirm the importance of the preservation of memories in society, highlighting that facts cannot be erased, no matter how terrible they may be. The memory of past horrors can help us to mature as a society.

The same Court, deciding the Special Appeal n.º 1.334.097 – RJ, examined a plea made by Jurandir Gomes de França, accused and absolved in a case which became known as the “Candelária Massacre”, a series of murders which occurred on the 23rd of July, 1993. Over the years, Juandir was singled out in various media as one of the “murderers”, “executioners”, “members of the death squad”, among other titles. In this case, the ministers recognize the right to compensation and that the right to be forgotten be applied to the information which tied Jurandir to the authorship of, or any kind of participation in the massacre, as he had been absolved in the criminal trial.

Similarly, a decision from the Federal District’s Court of Justice in (TJDF) in 2014 maintains that, when false, the information must be removed from the media. In the present case, the plaintiff, Josmar Ferreira Veiga, accused and later absolved for the crime of kidnapping his own daughter, seeks compensations and the right to remove the news, which alludes to the supposed kidnapping, from websites owned by Globo Comunicação e Participações S/A (Globo Communication and Participations Inc.).

These decisions are relevant in that they demonstrate a concern amongst ministers for differentiating between what actually occurred and, therefore, mas be recorded as part of history; and information which, being untrue, harm the individual in various aspects of their life. The same is not found in the European scenario: Mario González felt wronged when, upon looking up his name, he came across old news stories which linked him to a former debt. In this case, there is no false or slanderous information, but a mere record.

Should Mario have the right to edit his own history? In the opinion of the European Court, he should. And, by privileging the individual’s right to privacy, the Court doesn’t address the following questions: “what information do we, as a society, want to preserve?” or: should my individual desire to see certain information be edited or erased prevail over the right to preserve collective memories?

No, this is not a simple debate. Compelling arguments demonstrate the historic importance of the right to be forgotten¹ and there is no denying the risk that the growing amount of information about our lives – both public and private – in the virtual world can generate. But transferring the power to edit history to the individual, so that they may dictate what remains on record and what doesn’t, is far from an ideal solution.

One thing is certain: nothing is simple or small in debates involving Internet regulation. On the day of the launch of a feature, which enables the removal of personal data from its browser in Europe, Google received no less than 12.000 requests² . In the future, history may not be able to tell us if this was, in fact, the right decision. There will be no record of it.

*Alexandre has a Masters in Law and is a senior researcher at the Teaching and Research in Innovation Group (GEPI) at FGV São Paulo’s Law School (DIREITO GV)
**Mônica is a Doctor and Master in Law, Professor and Coordinator of GEPI – DIREITO GV.