How has the recognition of a “right to be forgotten” been debated in the Brazilian Congress? Simultaneously to the growing number of legal claims based on it — and the delivery of paradigmatic rulings, mentioned by InternetLab’s RTBF Week — the subject became an issue at the Brazilian Congress as well. Over there, a few draft bills attempt to regulate the matter.

The issue is controversial. A few of them were presented at the Brazilian Congress after the spreading of controversial news involving congressmen, what seems to have influenced their concerns by favouring the protection of one’s honor and image over freedom of speech. Regarding this trend, InternetLab’s research on the matter indicates that politicians are responsible for 1/3 of all legal claims involving freedom of speech and humor on the Internet that reached higher courts. In these legal claims, politicians request the protection of their image against humor content, indemnification and the removal of such content from the Internet. Therefore, the political class’ concern with the protection of their personality rights seems to have some influence on the draft bills.

On the last day of InternetLab’s RTBF Week, learn more about the main Brazilian draft bills on RTBF. Check out below the other topics addressed by the RTBF Week!

Topic 1 (30.01). What is the right to be forgotten?

Topic 2 (31.01). RTBF: Implementation challenges in Europe

Topic 3 (01.02). RTBF and global removals

Topic 4 (02.02). RTBF in the Brazilian courts

Draft Bill No. 7,881/2014: removal of “irrelevant or outdated data” without the need of a judicial order

This draft bill sets forth the possibility of requesting the removal of links from search results on the Internet that mention “irrelevant or outdated data” by means of an extrajudicial notification sent by “anyone”.

Presented by Eduardo Cunha (PMDB/RJ), who was then a Congressman, on August 6th 2014, this draft bill was rejected by the Commission of Consumer Protection (link in Portuguese) under recommendation of Rapporteur José Carlos Araújo (RR/BA). In his report on the bill, the rapporteur affirmed that the new version of draft bill No. 215/2015 addresses the same matter, was already submitted to wider debates and is ready to be voted in plenary. Additionally, the report highlighted that draft bill No. 7,881/2014 employed extremely vague terms to establish what could be erased from the search results, what may have serious consequences for freedom of speech on the Internet.

More recently, the draft bill was also rejected by the Commission of Culture under  recommendation of Rapporteur Jean Wyllys (PSOL/RJ). In his report, he highlighted that the Brazilian Internet Civil Rights Framework (Law No. 12,965/2014, link in Portuguese) already sets forth rules for removing harmful content which are applicable not only to search engines, but to all Internet application providers, by means of a judicial order. Pursuant to the aforementioned Framework, the Judiciary Power is the one in charge of deciding on content removal. The Rapporteur also argues that the right to be forgotten is not absolute and should be assessed by the courts on a case by case basis so they can balance the interests involved.

The draft bill has already been rejected by the Council for Social Communication of the National Congress. It will still be analysed by the Commissions of Science and Technology, Communication and Informatics; and Constitution, Justice and Citizenship.

Learn more about draft bill No. 7,881/2014 here (in Portuguese).

Draft Bill No. 1,676/2015: criminalization of the recording of images without authorization – and again – the possibility of removing the content without a judicial order

1,676/2015 draft bill criminalizes actions related to the recording of one’s image without authorization. Additionally, it guarantees a “right to be forgotten” by allowing any interested party to request content providers and search engines on the Internet “to refrain from disseminating or to exclude materials or references that link such party to illicit or compromising events”, regardless of a judicial order.

Presented by Congressman Veneziano Vital do Rêgo (PMDB/PB) on May 26th 2015, the draft bill is now attached to draft bill No. 2,712/2015, which also attempts to regulate the right to be forgotten. The last report issued by Congressman Fábio Sousa (PSDB/GO), in the Commission of Science and Technology, Communication and Informatics (CCTCI), recommended the rejection of the draft bills 1,676/2015 and 2,712/2015, affirming that the matter should be discussed in a broader manner, considering the risks that the implementation of a right to be forgotten can bring to freedom of speech. Mr. Sousa’s report awaits to be voted in the CCTCI.

Learn more about draft bill No. 1,676/2015 here (in Portuguese).

Draft Bill No. 1,589/2015: increasing the punishment for the violation of reputational rights that leads to the victim’s death

This draft bill increases the punishment for crimes against one’s honor when committed by means of the sharing of harmful content on the Internet that leads to the victim’s death. The draft bill was presented by Congresswoman Soraya Santos (PMDB/RJ) on May 19th 2015 and nowadays it is attached to draft bill 215/2015.

Regarding the right to be forgotten, the draft bill amends the Brazilian Internet Civil Rights Framework to allow the removal of content linking someone’s name or image to a crime from which such person was definitively acquitted. Additionally, the draft bill provides for the removal of content which is defamatory or offensive to someone. It attempts to apply to Internet content removal the same idea behind offline concepts such “as social rehabilitation” — rehabilitation of people acquitted of committing a crime or who already have concluded their time in prison.

Draft bill No.1,589/2015 was attached to the new version of the 215/2015 draft bill, which awaits voting in the Plenary. Learn more about draft bill No. 1,589/2015 here (in Portuguese).

Draft Bill No. 215/2015: protection to one’s honor and image

The early version of draft bill No. 215/2015, presented by Congressman Hildo Rocha (PMDB/MA) on February 5th 2015, exclusively provided for the increase of punishment in connection with crimes against one’s honor on social media. Draft bills No. 1,547/2015 and 1,589/2015 were later attached to draft bill 215/2015 and replaced by a new version of the latter presented by Congressman Juscelino Filho (PRP/MA), in the Commission of Constitution, Justice and Citizenship (CCJC).

The latest version of the draft bill, which was approved by the CCJC and submitted to the Plenary, incorporates provisions of draft bill No. 1,589/2015. It adds two paragraphs to article 19 of the Brazilian Internet Civil Rights Framework, allowing any person to judicially require the removal of content that links his/her name or image to a crime from which he/she was definitively acquitted. Additionally, the new version provides for the removal of content which is defamatory or offensive to someone by means of a judicial order and allows the application of fines to compel Internet application providers to comply with it. Draft bill No. 215/2015 is now ready to be voted by the Chamber of Deputies plenary. If approved, the draft bill will be submitted to the Senate.

Learn more about draft bill 215/2015 here.

InternetLab, alongside Centro de Tecnologia e Sociedade da FGV Direito Rio (CTS FGV) and Grupo de Pesquisa em Políticas Públicas para o Acesso à Informação da Universidade de São Paulo (GPoPAI/USP), presented a policy brief on this version of draft bill No. 215 to the congressmen of the CCJC on October 5th 2015. Regarding the attempt to regulate the right to be forgotten, the policy brief highlights that, in the way that this right is provided for in the draft bill, “the balancing between freedom of speech and the right to information was intentionally ignored”. Additionally, the note highlights that the issue has a complex nature. Thus, it cannot be addressed by a sole piece of legislation based on criteria “clearly biased by an individualistic approach”. Lastly, the policy brief emphasizes the need to foster a broad public discussion about this matter with the participation of many sectors of the Brazilian society before the approval of a draft bill attempting to regulate it.

Access the policy brief here (in Portuguese).

Team responsible for the content: Thiago Dias Oliva (thiago.oliva@internetlab.org.br), Beatriz Kira (beatriz.kira@internetlab.org.br), Dennys Antonialli (dennys@internetlab.org.br) and  Francisco Brito Cruz (francisco@internetlab.org.br).

Translation: Ana Luiza Araujo (analuiza.araujo@internetlab.org.br)