Esquecimento, internet e “preferência” da informação: possibilidades de aplicação da doutrina dos preferred rights da jurisprudência norte-americana ao caso brasileiro

Abstract

The internet has been configured as the primary means of communication between people, creating a virtual space with virtually no boundaries or limits, with equally unlimited information. Indeed, the so-called “right to oblivion” ends up being strained in this scenario, when delicate facts, long occurred, are easily (re) found on the pages by the network. In this sense, the applicability to the Brazilian legal reality of the preferred rights theory, as conceived in doctrine and especially in US constitutional jurisprudence, is questioned when confronting the fundamental prerogatives that require free access and unimpeded to the information posted on the network with those that claim respect for privacy, privacy and responsibility for such information. The originality of the work lies in investigating whether it should, why and when there should be a “preferred position” of the right to information on the right to forgetfulness. The methodology followed the reading of books, articles of periodicals and documents, classifying the research as bibliographic-documentary, pure and descriptive. It was based on the basic concepts involving the rights in conflict and their treatment in the jurisprudence of the mother country to investigate how adequate it would be to defend the preference of one over the other. As conclusions, it is considered that there should only be preference of the collective premise of access to information on the particular guarantee of forgetfulness when: i) the information has political or social relevance; ii) the medium used for the dissemination, in the exercise of freedom of expression, preserves the name and image of the person concerned; and iii) the civic character of the information surpasses its economic exploitation.