Brazil: Federal Supreme Court Decides Right to Be Forgotten Is Not Supported by Constitution

(Mar. 15, 2021) On February 11, 2021, the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF) dismissed the extraordinary appeal by family members of the victim of a notorious 1958 murder who had sought redress for the reconstruction of the case on a 2004 TV show without their permission. In a ruling of “general repercussion”—one that serves as guidance for decisions in similar cases—the high court in Globo Comunicações v. Curi rejected the family members’ claim that they had a right to be forgotten.

By a majority decision, the STF decided that “the idea of a right to be forgotten is incompatible with the Federal Constitution, thus understood as the power to prevent, due to the passage of time, the disclosure of facts or data that are true and lawfully obtained and published in social media—analogue or digital. Any excesses or abuses in the exercise of freedom of expression and information must be analyzed on a case-by-case basis, on the basis of constitutional parameters, especially those relating to the protection of honor, image, privacy and personality in general, and those expressed and specific legal provisions in the criminal and civil spheres.”

Extraordinary Appeal (Recurso Extraordinário)

An extraordinary appeal is an appeal filed with the STF contesting the decision of a lower tribunal (acórdão) on the basis that it contradicts a constitutional norm, declares a federal law or treaty unconstitutional, or considers valid a law or act of a local government contested under the Constitution. Its main purpose is to preserve the constitutional principle that was violated.

General Repercussion (Repercussão Geral)

Constitutional Amendment No. 45 of December 30, 2004, included as a prerequisite for the admission of an extraordinary appeal the requirement that the constitutional question being raised presents an issue with general repercussion. Article 102, § 3 of the Federal Constitution now determines that, in order for the STF to examine the admissibility of an extraordinary appeal, which may be rejected only by a two-thirds vote of its members, the appellant must demonstrate the general repercussion of the constitutional questions argued in the case, as provided by law.

According to the STF, the purpose of the requirement for a constitutional issue of general repercussion is to define the jurisdiction of the court in trials of extraordinary appeals that have social, political, economic, or legal relevance that transcends the subjective interests of the cause at hand, and, as a practical matter, to standardize the constitutional interpretation without requiring the court to decide multiple identical cases about the same constitutional issue repeatedly.

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