A autonomia do direito fundamental ao esquecimento no ordenamento jurídico brasileiro

Abstract

This research deals with the right to forgetfulness, which, although it does not have its own legislation in the Brazilian legal system, is the subject of judgments of the Federal Supreme Court and the Superior Court of Justice. The general objective was to establish the foundations and the specific requirements to support the construction of an autonomous right to forgetfulness, based on the following question: is it feasible to recognize the autonomy of the right to forgetfulness in the Brazilian legal system? To this end, the following specific objectives were defined: to delineate the right to forgetfulness and its legal configuration in the international and Brazilian legal systems; to verify the right to forgetfulness in the light of human dignity and personality rights, its applicability and its inference as an autonomous right in the national sphere; and to discuss the impact of the STF decision in RE No. 1.010.606 - RJ (Appendix A), which deals with the right to forgetfulness in contemporary national jurisprudence. As a methodology, we chose to conduct a technical analysis by means of normativelegal research in judgments and existing doctrine that presented elements aimed at recognizing a right to forgetfulness. The research was exploratory and descriptive, with a qualitative approach to the decisions of higher courts, case studies and doctrine. The results indicated that, on the one hand, the Brazilian legal system protects the right to forgetfulness to the extent that it prioritizes happiness and the right to be alone (isolation) as a principle for the applicability of the right to privacy and as a means of ensuring human dignity, and, on the other hand, the Federal Supreme Court does not recognize the constitutional support for the right to forgetfulness, demonstrating a clash in the decisions in force in the country. Thus, it was concluded that there is a need to update the jurisprudential analysis of the issue at the national level, since it is supported by the evidence that the right to forgetfulness seeks to guarantee the principle of human dignity and does not depend on other rights or guarantees for its recognition.