The SMS v. Google case illustrates the confusions surrounding the expression “right to be forgotten”.
Brought against the search engine Google Brasil, the action required the delisting of images of the plaintiff based on searches using her name. After the case was dismissed in the first instance, the State Court of São Paulo (2nd instance) affirmed that Google should not index the content because there was no public interest in accessing it and that it would violate the human dignity value. Google appealed, arguing that the plaintiff should indicate the specific URLs to be blocked, based on the Civil Rights Framework for the Internet requirement that court orders identify clearly the infringing content.
In this case, the Court first affirmed that the decision appealed is based on a “right to be forgotten”, and defined it as “a measure to compel the defendant to filter results of searches containing the name of the plaintiff.” However, in another part of the decision the Court adopted a different definition of “right to be forgotten” as “a right not to be remembered against its own will, specifically in regard to dishonorable facts, of criminal nature, in which one was involved, but was later acquitted.” By mentioning the Candelária case (the lawsuit brought against TV Globo), the court affirmed, “a right to be forgotten must be recognized, when the circumstances determine so.”
This case is especially interesting in contrast with the Google Spain case. While dealing with the hypothesis of a “right to be forgotten” to be enforced against a search engine, it expressly mentions the European precedent, pointing out that the Google Spain case is different from the Brazilian case due to the lack of a data protection law comparable to the EU's in the country. However, the court examines the request to be delisted in the context of the data protection provisions existing in the Marco Civil (Civil Rights Framework for the Internet), especially article 6, which states:
Art. 7º - The access to the internet is essential to the exercise of citizenship, and the following rights are guaranteed to the users:
I - inviolability of intimacy and private life, with rights for protection and compensation for material or moral damages resulting from breach;
(...)
X – the definitive elimination of the personal data provided to a certain internet application, at the request of the users, at the end of the relationship between the parties, except in the cases of mandatory log retention, as set forth in this Law;
Considering the definition of Internet application in the law, the court concluded that: “the right of definitive elimination mentioned above reaches out solely the information that the user provided a determined application provider.” This means that the right to erasure (elimination of personal data) existing in Marco Civil does not extend to publicly available speech.
While addressing the liability of internet search engines, Judge Nancy Andrighi affirmed that the search engine does not create or control the content it indexes, and that the results presented by the intermediary are publicly available on the internet.
It is interesting to notice that the decision emphasizes that the information is public on the internet and that, as affirmed in other cases, “if a page hosts illicit content, the plaintiff must take measures for its suppression, with what the information would be automatically excluded from the search results of all search engines.” This assertion is important because, in contrast to the Google Spain leading case, it indicates an understanding that the content must be illegal to be suppressed, while the CJEU precedent indicates that the delisting may take place even if the original content was legally published.
It is also important to emphasize that although the case explicitly mentions the precedents of a right to be forgotten, nothing in the concrete case before the court seems to be related to the delisting of legally published information due to the passage of time. However, as this case is under secrecy and the decisions in the lower courts are not available, it is not possible to confirm this information.