Direito ao esquecimento: a desconsagração do direito penal do autor

Abstract

The notion of right to be forgotten is not new. In spite of the greater and more recent relevance acquired by the theme, mainly due to the effects brought by technological advance in the propagation of information, we have registered the application of the institute already in the 1930's by the Supreme Court of California, in appreciating the "Red Kimono" case. It is a fact that the support and inaugural relevance of the right to be forgotten are found in the field of Criminal Law, in homage to the legal and constitutional presumption of individual resocialization, renewing in the ex-detainee the hope of not having against him the reverberation of his outrageous past in the social environment to which he tries to readjust, as well as ensuring that its criminal antecedents are not evaluated negatively in an eternal form. That is why the right to be forgotten operates an effective deconsecration of the “author's Criminal Law”, rejecting any perpetuity in negatively weighing what the individual "is". There was, fortunately, a clear and wise change of paradigm in Criminal Law, making it more of a guarantor and pointing to the prevalence of “Criminal Law of fact” and the various principles that flow from it. In the present work, we start from the concept of the right to be forgotten and the historical evolution of the institute, in order to use it as a beacon in the comparative of prominence among some fundamental rights provided for in the current Constitution (Inviolability of Intimacy, Private Life, Honor and Image as opposed to Freedom of Expression and Information). We analyze a specific case that dates back to Germany in the late 1960s (Lebach case), which is emblematic in the application of the right to be forgotten and of unique value to the solidification of the institute. By opportune, we enter in the subject of “author’s Criminal Law”, establishing its contraposition with the “Criminal Law of fact” and the Constitutional Principles that support it. Finally, we analyze the right to be forgotten and its applicability in the information age, outlining the importance acquired by the institute with the technological advance and excessive diffusion of information