A incompatibilidade do direito ao esquecimento no ordenamento jurídico brasileiro: uma análise comparativa com o Sistema Europeu de Direitos Humanos

Abstract

This article analyzes the legal incompatibility of the right to be forgotten within the Brazilian legal system, contrasting it with the treatment conferred by the European Human Rights System. The research addresses the constitutional implications of this divergence for the protection of fundamental rights, such as privacy and freedom of expression. It adopts the deductive method, with a qualitative, explanatory approach, and a bibliographic and jurisprudential review. The general objective is to analyze the institute's incompatibility in Brazil and its consequences. Specific objectives are: to examine the concept and evolution of the right to be forgotten within the European Human Rights System, emphasizing the jurisprudence of the European Court of Human Rights; to investigate the Brazilian constitutional approach, highlighting the reasoning of the Supreme Federal Court in Extraordinary Appeal (RE) No. 1,010,606; and to compare the legal implications of the divergence between the two orders. The investigation is justified by the need to assess the adequacy of constitutional instruments against the challenges of permanent digital memory. It is concluded that the European System consolidated the right to be forgotten through an evolutionary interpretation of privacy, applying harmonization techniques (such as anonymization and de-indexing). In contrast, the STF declared the institute incompatible with the Constitution, opting for a model that prioritizes freedom of expression regarding truthful facts and remits protection to a case-by-case analysis of abuses against specific personality rights, distancing itself from transnational constitutional dialogue on the subject.