The main Right to be Forgotten case, currently in debate in the Brazilian Supremo Tribunal Federal, is the litigation between Nelson Curi and the major broadcaster in the country, Rede Globo. Although the case does not involve an internet intermediary, it is extremely relevant as it may set a basis for the recognition of a “right to be forgotten” in the country against traditional media companies, with possible consequences to search engines and internet intermediaries.
In this case, the family of Aida Curi (Nelson Curi and others) filed a lawsuit against the broadcaster claiming damages for the airing of TV program about a crime (the homicide of Aida Curi) which occurred many decades before. The plaintiffs claim that the continuous exposure of the case forces them to remember painful facts, and they seek payment of moral damages due to the unauthorized use of the image of Aida Curi. Part of the argument presented by the plaintiffs is that a “right to be forgotten” has already been recognized for convicted persons who served their time in prison. allowing these individuals to have their criminal records erased to facilitate their rehabilitation. The plaintiffs affirm that this right should be extended to the family of the victims of a crime in order to protect their human dignity, their private life and their personality rights.
The plaintiffs also asserted that the news reporting aired by Globo did not have the goal to inform the general public about a relevant issue and that, due to the time elapsed, there would be no journalistic interest on the subject, but only the interest in exploring the case in a sensationalist manner to make profits, therefore causing harms to the family of the victim.
The State Court of Rio de Janeiro found that these claims had no legal grounds and dismissed the case. The plaintiffs appealed to both Brazilian Superior Courts. Their claim was denied at the Superior Tribunal de Justiça, but the Supreme Court agreed to hear the case after recognizing its general repercussion to society at large.
In contrast to the Google Spain case, the legal basis of the lawsuit is not the violation of data protection rights and the action does not involve a search engine as a defendant, but solely the original publisher (a television company). The action is framed as a “Right to Be Forgotten” case as it is associated with the reporting of facts that occurred more than 5 decades ago. The plaintiffs do not raise any argument about the fact that the information is available by new technological means on the internet.
The case was also previously analyzed by the Superior Tribunal de Justiça (Recurso Especial 1.335.153-RJ), where the result was against the recognition of a “right to be forgotten”, considering that the facts had historical value and that it would be impossible to report on the facts without mentioning the victim.
The possibility of reporting the facts without mentioning a person’s name was also considered in the Candelaria case, where the STJ affirmed the possibility of such reporting. Although these two cases are focused on the original publisher of information and not on search engines, it is possible to identify an emerging argument on the jurisprudence of STJ, focusing on the protection of the name of the person in the reporting of facts.
The decision also affirms that the recognition of a “right to be forgotten” does not necessarily lead to the payment of moral damages to the plaintiff, as the older the facts, the less likely it is that its reporting can cause any harm.