O direito ao esquecimento e o tema 786 do STF: (in) compatibilidade com a autodeterminação informativa

Abstract

Communication and information technologies have undergone profound changes with technology advancements, as well as the society. As a consequence, new legal solutions were proposed, among them the adoption of the right to the protection of personal data as a fundamental right and the elaboration of the General Data Protection Law (LGPD), which has as one of its principles informational self-determination, or namely, the right of each individual to control their personal data. Otherwise, the right to be forgotten consists of preventing the disclosure of information due to the loss of public interest resulting from the passage of time. This right has at its core the guarantee of the individual's self-determination, in order to ensure their personality rights. The Brazilian Federal Supreme Court (STF), through Thesis 786, understood that the right to be forgotten is not compatible with the Brazilian Federal Constitution. In this context, it is questioned: to what extent the understanding of Federal Supreme Court Thesis 786, which affirms the incompatibility of the right to be forgotten with the Brazilian Federal Constitution, harmonizes with the informative self-determination made possible by the General Data Protection Law (LGPD)? For this, the deductive method of approach is used, since general assumptions are analysed, namely the General Data Protection Law and STF Thesis 786, to reach a specific conclusion. The method of procedure applied is the comparative, and the research techniques used are bibliographical and documental research. The analysis of the votes demonstrates that the arguments used by the STF Justices defend the unconstitutionality of the right to be forgotten, since it offends the right to freedom of expression, being the case of prior censorship, since it limits access to information of public interest. In the final considerations, it is conceived that the STF's understanding undermines the harmonization of fundamental rights, as well as inadequately defines the right to be forgotten. This, added to the non-application of the LGPD in the processing of personal data for journalistic and artistic purposes, restricts the right to informative self-determination and other personality rights.