Dispute Resolution Committee

Right to be forgotten, syndrome of the inhibitory measure and the villanization of the internet

By Eduarda Rosas posted 07-20-2018 03:31 PM

This is an important historical moment in Brazil and worldwide. People are experiencing up here the devaluation of the currency, uncertainties (and certainties) about the political future of the country, the operation Lava-Jato, the homosexual after-dawn and the discovery of polylove, mass unemployment, economic crisis, the (anti)institutionalization of bullying,1 general elections), Zika-virus outbreaks, the new civil procedure code, the world cup - and the year is yet to finish the first semester.

Although universal, the transformations lived are yet accessible and anyone can be a part of it directly from the living room sofa, in almost every city in Brazil. They watch the global espionage, US elections, war in Syria, refugees’ drama in Europe, global actions to try to preserve the environment, the British royal family routine, the manifestations of Pope Francis, the terrorist threat of the Islamic State, etc.

The traffic information is colossal. Internet access is still far from being universalized, but grows in exponential scale. The social networks are replacing interpersonal relationships, eliminating barriers, defying the “politically correct” and defining this as the Golden Age of Surveillance.

The more aware the population becomes, the more disputing it is; in this context, the transition movement to make process fully electronic comes in handy because it allows a greater flow of lawsuits. The mobile network is complemented with the wifilization of the world. The news are transmitted almost simultaneously to the facts they report and the viralization allows a pluri-multiplied effect of online content.

Concepts like Computer Law, Legal Informatics, Internet Law and Electronic Law emerge, each one defending its own autonomy. The Internet Civil Law, recently enacted, does not cease to be questioned: is it enough? How can it be improved?

Imagination grows in the same proportion to the web expansion and pops up, for some, the desire to regulate it more and more in order to obtain some sort of control. The sector is suffering the regulatory purpose of these initiatives with the justifiable fear that the excuse to supposedly protect society from the internet, turns out to weaken the internet itself, killing its free spirit, instead of providing awareness to users.

The internet, which until recently was the bastion of a new era - Digital - ends up being antagonized and vilified by the influence of the "permanent injunction syndrome"2 which has affected contemporary society in response to a desire for anticipation of results and unrestricted control.

In the front of this regulation movement, one of the protagonists is the "right to be forgotten", from now on “RTBF”. The self-exhibition is out of control and everyone is restless about it; this concern is manifested through the desire to manage other people's freedom of expression preventively and, therefore, legal rules are proposed in order to suppress fundamental guarantees like free speach.

On the one hand, the society demands security from the Government: "Protect me from cybercrimes, cyberwars, cyberterrorists and defend me against the curiosity of my neighbor and from the credit card company harassment (Amen!)." On the other, people cry for privacy: "I'm not cybercriminal, I'm not suspicious and do not work for an online sales company! Don’t watch me." They put their breakfasts and work outfits online, but they demand to be let alone. Where is the boundary between a valid and a vile preventive surveillance? It is clear that the subjective rights should be protected - all of them. To argue otherwise would be incompatible with the legal order. However, the extent and nature of these [rights] is becoming blurred and, as a result, it is worrying to think that in order to extend them, the injunction syndrome would banalize those same concepts instead.

The controversy over fundamental guarantees ultimately extends itself to the supposed clash between security and privacy, protagonists of the global discussion on encryption3. Nonetheless, large volumes of Big data4 are harvested for commercial purposes and people are consenting to be monitored unknowingly or out of laziness - but this is a topic for another time.

Returning to the RTBF issue, radicalism towards it brings the risk that in the name of rights protection for some, it will be lost the freedom of expression that benefits all - to the extent that the law and the judiciary are at risk of being trivialized as (mere) frustration - fighting - tools. They are expected to frustrate people, both for letting they say whatever they want or by shutting them up.

For example, the Statement no. 531 from the Civil Law Journey VI, held by the Brazilian Federal Council of Justice, stated that "the protection of human dignity within information society includes the right to be forgotten", which is regarded as the recognition of the RTBF itself (so far, without consensual conceptual definition). Regardless, it seems unnecessary one Statement that includes the protection of RTBF among the dignity protection tools, when there is nothing in the legal system that could give, before the Statement, the impression that it was not already covered by them. The same can be said about the Statement5 that proposes an inhibitory measure to protect the right to be forgotten: what is the use of a Statement that guarantee an inhibitory protection measure when there is nothing at all that would prohibit the exact proceeding (legality principle)?

There is no reason to reinstate what was already sufficiently established. Especially when the solo purpose of such measure would be merely to abstractedly antagonize others. Incidentally, is not the existential right already part of right to dignity? And could it not bring about an injunction measure already? Or would it be required some Statement in this regard as well? Not to mention the (newly designed) right to happiness7 and right to compensate the lost time (direito temporal), among others that could be projected - which is not the point here - whose meanings are perhaps more evolved and consolidated than the RTBF - be them reasonable or not; be they autonomous rights or development of older guarantees - there is no need to enact a categorical and designed protection for each and every one of them.

Regarding the apparent conflict between the privacy of some [human beings] versus others' freedom of speech, the Minister of the Supreme Court, Celso de Mello, in the judgment of the Complaint no. 21.504-SP, overthought a decision of the state court of Ribeirao Preto (SP), which called for the withdrawal of journalistic article on a website. The Magistrate of the Supreme Court explained that the protective jurisdiction cannot undermine or prevent freespech in advance, establishing inhibition measures that aims to control it:
[...] The exercise of jurisdiction by interim judges and courts cannot be converted into inhibitory judicial practice, much less censorship of the constitutional freedom of expression and communication, otherwise the general power of caution attributed to the Judiciary could be qualified, dangerously, as the new name of an unacceptable state of censorship in our country.
The context of the above decision does not concern the RTBF. The reference, however, serves the purpose of drawing attention to the precautions to be observed in the exercise of protective jurisdiction that proposes to thwart a fundamental guarantee and social achievement, such as freedom of speech/press, on behalf of any other (in this case, dignity).
As was said, the role of (another) protagonist (among many others) assumed by the RTBF, as a right to oblivion, in the movement of internet regulation, puts it in the spotlight. Not for its meaning itself (which is far from being objective), but for what it represents: the fear of the unpredictable - which is just natural when it comes to human behavior.

If the right to be forgotten, in fact, is a "right to overcome”, - which seems a more consistent nomenclature regarding the intention of the institute – the presumptuous obligation to erase the past can´t be justified. It would be enough for one to simply abstain oneself of future references of the matter. The European Union approved, on April 14, 2016, a series of rules on data protection, especially regarding the General Data Protection Regulation (GDPR) and, from now on, what the European Directive 1995 called “right to be forgotten” (the origin of the acronym “RTBF”) was renamed “right to erasure”. Although it is not yet clear the method of implementation or the extension of the new rule, this seems imbued with greater technical preciousness when it imposes an objective conduct (delete), rather than a subjective behavior (forget). It is innately surreal to propose that the judiciary or the law will order the literal obliteration of the past, the strict oblivion. The extirpation of a fact from history (and collective memory) is unreal because it is absolutely unattainable.

It cannot be legitimate to impose an unworkable logistics that would promise surveillance and monitoring of previous existing content [before the instant when the RTBF would be acknowledged] because you can’t expect providers to use divinatory powers and know the contents that, once posted, would be personally harmfull to somebody. That would be a delusion. Besides, even if it were feasible to map all files in mechanical and virtual media on which were stored certain informations, there would always be the human memory and the ability to reproduce it verbally or physically. The viral spread of virtual content and the amount of network users, in any case, already make it an implausible task.

To defend a legal or judicial order that would be impossible to comply with since its conception is inconsistent with the legal system while creates a command that is doomed to not be effective and a punishment that will apply to all those who contravine the standardized conduct because of the simple real impossibility of avoiding it. That is what happens when one orders the obliteration of a content, transforming the provider into a Sisyphus who will eventually fail and, whenever it happens, be penalized. Seems more coherent, thus, the right to overshoot be treated as a possible restriction of reiteration or repetition of certain preterit information, presently and in the future, in given circumstances - bearing in mind that such a limitation would be an exception and not a rule; considering the freedom of expression, the free press and the prohibition of censorship. Yes, the internet provides the viralization of content (also the intimate ones) produced by people (involved or other parties), but it does not create content. Indeed, the need for protection of privacy is much older than the RTBF, or the Internet to be more precise, and much deeper in its essence. In truth, the "chance to overcome" (better than the RTBF idea) is no different from protecting the honor, intimacy and dignity that already serve any victim of conveyed (bad0 stories, either on first hand9 or by reiteration. 

It is worth to note, in occasion of the discussion about (not) sobriety and (un)temperance of inhibitory measures, the text of the bill no. 215/15, an initiative of the Federal Deputy Hildo Rocha (PMDB-MA), which has been called by many the "online gag" and "villain law-project". Nevertheless, the Internet Steering Committee in Brazil (Comitê Gestor da Internet no Brasi), authority in the area, produced a disapproval manifest regarding the bill and, among other critics, is the repudiation of the possibility to request the unavailability of content that simply associate the name or image of a person to a crime of which he has been acquitted with res judicata, or event libelous, defamatory or injurious; and the possibility of full or partial anticipation of the effects (injunction) in these cases. It is noteworthy that these determinations would already be perfectly feasible today, regardless of the bill no. 215/15, based on the Constitution and on arts. 10, 19 and 23 of the Civil Law of Internet, plus arts. 294, 296, 297 and 298 of the New Civil Procedure Code.

In favor of diplomacy, it is fair to point out that also those who criticize the design of the bill lack reason for the same reason: the recognition of honor violation would still depend on subjective examination by the magistrate and only then measures would be accessed, chosen and taken. The reasoning also applies to obstruction - oblivion – of content involving individual crime of which the person was acquitted by final judgment: with or without the bill no. 215/15, the situation will be considered in the casuistry, just as it would be currently. That is why excessive belligerence about the bill, behind the scenes, whether favorable or not, is often worthless and can only be explained by this fear of the uncertain and the unknown that leads both sides to act in advance.

In addition, any modification of the Internet Civil Law to include such rules do not have the magic power, per se, to invalidate the article 19 of that legislation, which determines consideration with the technical limits of the provider in compliance with court orders. The inevitable conclusion is that the big decisions concerning the Internet Law are being taken to court, not the Legislature, at least at first, because they do not rely on new laws, but on the (re)interpretation of existing ones - whereas the facts often precede the laws (otherwise, how the consequences of the impending use of virtual reality or the eventual disappearance of the currency paper ballots could be ever dealt with?).11

The assumption to be adopted, therefore, is that technology-and-law topics require axiological rules and minimal regulation if we are to alow the internet to continue its expansion and ripeness.12 Still, for this to be viable and civilized, it is indispensable that users are willing to take the risks and accept the responsibility for their actions, especially about the self-exhibition they may choose to do13, wherever it is in social networks, chats, blogs, vlogs, virtual and argued realities, etc.; or even in the “real” world14.

The continuation of the Internet evolution - but also of human refinement in general - calls for a serious reflection on the permanent injunction syndrome and individual responsibility of each person for his own actions, right or wrong, in and off the web. There is no dignity without conscience and is contradictory to repute essential the first one without attributing the due importance to the latter. Therefore, it is necessary to recognize and combat the trend to infantilize society, which would justify a tutelage dysfunction (especially in consumer relations), and it is imperative to abandon it right away.

The minimum confidence in the ability of individual choice leads to the indisputable illation that people are responsible for their own choices. Thus, it will be produced legislation and jurisprudence dealing with the rule, not the exception: focused primarily on the subject of how things should be (positive), instead of curbing a series of hypothetical behavior (negative).15 The Internet reflects its users, not the other way around. Therefore, it is coherent to surpass, as soon as possible, the injunction syndrome to see the society as an adult institution with self-control capacity and self-preservation attitude – and treat it accordingly.
Building on the hook of conservancy syndrome and social infantilization, the House of Representatives approved on October 15, 2015, the Draft Law no. 5.369/09 to combat bullying. Without entering into the merit of the text, which certainly has its positive points, it is impossible for the generations grown before the "institutionalization of bullying" do not ask, "What has changed that now all of this is required? Is really is, isn’t?"

In an interview to the Anuário de Justiça de São Paulo, the President of the São Paulo Court of Justice, Judge José Renato Naline, expressed the view that Brazilian society is suffering from infantilization and a "permanent injunction syndrome." It is what says Frederico Vasconcelos, journalist, in 'Injunction Syndrome', published in the Folha de S. Paulo, on October 11, 2015.

Chacon, Eduarda. Encryption and judicial access. In http://www.migalhas.com.br/dePeso/16,MI236262,81042-Encriptacao+e+acesso+judicial. Accessed on 14/04/2016.

That is what allows, for example, the clothes or sports equipment that the user searched in an online store to be shown in the newspaper site one reads every day. The data that end up “selecting the posts” according to the browser historic of each person. It is the advertisements that matches, "coincidentally", to the issues on trend and most searched products, etc.

5 In the VII Jornada de Direito Civil (Civil Law Journey VII), in September 2015, a Statement claimed to be admissible the inhibitory protection as a response to any threat to the RTBF was approved in its Commission, but was vetoed after by the Plenary.

Very interesting reflections about the “Statement Fever” (A febre dos enunciados e a constitucionalidade do ofurô! Onde está o furo? ) by Lenio Streck, on September 10th, 2015; and why the statements represent a setback in the theory of law, also by Lenio Streck, October, 15th 2015, both from Consultor Jurídico: http://www.conjur.com.br/2015-set-10/senso-incomum-febre-enunciados-ncpc-inconstitucionalidade-ofuro and http://www.conjur.com.br/2015-out-15/senso-incomum-professor-aluno-jornalista-selfie-velorio-fujamos. Both consulted on October 19, 2015.

Quoted by the Ministers of the Supreme Court, in two occasion: the judgement about embryonic stem cells (ADI No. 3510), and when the court decided about the recognition of homosexual marriage (ADI No. 4277).

The need for parsimony is crystalline, for example, when it comes to the debate about biographies.

As it turned out the recent decision of the São Paulo State Court ("Woman must compensate ex-boyfriend to disclose intimate pictures"), in http://www.tjsp.jus.br/institucional/canaiscomunicacao/noticias/noticia.aspx?id=28296. Accessed in October 13, 2015.

10 More information on http://www.cgi.br/resolucoes/documento/2015/013. Accessed on 14/04/2016.

11 CHACON, Eduarda. Things the internet. In http://www.migalhas.com.br/dePeso/16,MI227698,41046-As+coisas+da+internet. Accessed in May 2, 2015.

12 Contrary to what happened with the telecommunications highly regulated and therefore super-plastered.

13 In fact, when someone exposes himself unnecessarily, he is giving up his privacy in favor of his freedom of expression and, therefore, it would be hypocritical to deny the same freedom of expression to others. Much is said to be the risk of the activity, ignoring the risk of voluntary adherence to certain practices, the car driver is not that different from the social network user.

14 In any individual or intimate exposure there is great chance of placement, especially for public figures. This need not be branded as right or wrong, necessarily, only acquiesced as reality.

15 In this context, is relevant to draw attention to the question of liability of providers. There is a certain movement in the legal environment for the award of strict liability to providers - without distinguishing between the various types of them - on the grounds of "activity risk." It may be possible to assign the injunction syndrome this recent glow to confer such responsibilities to the greatest number of cases, which is worrying considering that the rule of liability is of subjectivity and not objectivity. Taken literally, the risk of the activity is present in almost everything. Living is a risk. You cannot objectively blame the market for the apple critter, the gun factory for the criminal shooting, the car manufacturer for the trampling caused by the driver. If so, not anyone who buys a rose assumes the risk of sticking in its spines. Similarly, the internet user takes a risk when puts himself as such, considering that he will be subject to the risks inherent to the participation in the network. The user ought to accept the risks. Of course, a certain provider may be responsible for some damage caused by malfunction on their services, but never objectively. There is a great variety of everyday situations proclaimed cause to objective accountability because of the syndrome of protection phased to a chronic level inside and outside the Internet.
*Article originally published in portuguese by Migalhas Eletronic Maganize, in http://www.migalhas.com.br/dePeso/16,MI238352,51045-Direito+ao+esquecimento+sindrome+da+tutela+e+vilanizacao+da+internet - April, 29, 2016.