O DIREITO AO ESQUECIMENTO NO DIREITO PENAL PODE COEXISTIR COM A LIBERDADE DE IMPRENSA E O SEU DEVER DE INFORMAR? UMA ANÁLISE COM BASE NAS DECISÕES DOS TRIBUNAIS SUPERIORES

Abstract

Carried out through the analysis of national case law, related cases, and legislation pertinent to the subject, the present research aims primarily to elucidate the conflict between the right to be forgotten in criminal law and the freedom of the press within the Brazilian context, and above all, to answer whether these two rights can coexist within the same constitutional framework. Freedom of the press is guaranteed by the Federal Constitution and ensures that such expression shall not, under any circumstances, be subject to restriction. However, the aforementioned freedom conflicts with other rights also guaranteed by the Constitution, such as the right to privacy and intimacy, which are considered inviolable rights. The central focus of this work is precisely to understand how this duality was constructed and, more importantly, how legislation and case law address the issue. In this regard, there are several schools of thought. One school, supported by Statement 531 of the VI Civil Law Conference of the Federal Justice Council, asserts that the right to be forgotten is an integral part of human dignity and, therefore, must be enforced as a means of avoiding the perpetuation of judgment due to past events. However, another school, led by the Federal Supreme Court and evidenced by Extraordinary Appeal No. 1.010.606, also known as the "Aída Curi Case," argues that the so-called right to be forgotten is incompatible with the Constitution and, therefore, unconstitutional. This thesis is based on the argument that the mere passage of time is not a sufficient reason to prevent the free circulation of information by the press, especially when it involves facts lawfully obtained. Despite the conflict, in general terms, according to the most recent decision rendered by the Supreme Court, the right to be forgotten is not recognized, and any excesses in the exercise of freedom of the press and expression are assessed separately and individually in each case, without precluding potential accountability for abuses committed. The method to be used in this research is the historical-logical method.