Direito ao esquecimento e os possíveis critérios para sua aplicação à luz do recurso extraordinário N° 1.010.606

Abstract

This work concerns a critical study based on the right to be forgotten in light of Extraordinary Appeal 1.010.606, which was responsible for addressing the topic as a general repercussion. The right to be forgotten is a legal and doctrinal construction that dates back to its first cases in the 1930s, however, it is not a right embodied in the Brazilian legal system, even though it has already been the subject of judicial decisions, as well as studies by Brazilian scholars. In this context, the Federal Supreme Court was responsible for issuing a decision aimed at pacifying the constitutionality of this right, especially due to the lack of specific legislation in this regard. Thus, in its decision on Extraordinary Appeal 1.010.606, the STF ruled that the right to be forgotten was unconstitutional under the Brazilian Federal Constitution, however, it highlighted the possibility of its applicability depending on the specific case. From this decision the research problem arises: what could be the criteria developed for the application of the right to be forgotten in the Brazilian legal system? To this end, the general objective is to highlight possible criteria that could be used to address the issue of the right to be forgotten based on the analysis of the decision mentioned. Specifically, the aim is to: trace a historical evolution of the concept of the right to be forgotten; analyze how the Brazilian Judiciary evolved in understanding the right to be forgotten until the STF decision in 2021; and indicate possible criteria to guide the confrontation of the issue of the right to be forgotten in Brazil. To this end, the inductive approach method and the monographic and typological procedure methods are used, as well as documentary and bibliographic research techniques. It is concluded that the following can be listed as criteria for the right to be forgotten: the passage of time and offensive potential; the legality of the information; the legal nature of the law; the status of the agent involved, whether they are public or private agents; and the means of communication in which it will be broadcast.