Uma análise constitucional da colisão entre o direito ao esquecimento e os direitos fundamentais na era da hiperinformação.

Abstract

The present paper aims to examine the theory of the right to be left alone, highlighting its origin, characteristics, application and interpretation in the brazilian legal system, as well as analyzing the rights to image, honor, intimacy and privacy in the brazilian legal system, analyze the freedoms of information, expression and press in contemporary society, identifying its limits and analyzing the collision between the right to be left alone and the freedoms of information, expression and press, bringing the doctrinal method of pondering as a possible solution to this conflict. The subject, of dense and non-pacified analysis in Brazil, intensified in March 2013, after the publication of Enunciado nº 531 in the VI Civil Law Journey, sponsored by the Federal Justice Counsil. In such publication, the right to be left alone was included under the provisions of the dignity of the human person, establishing that it is the human being’s right not to be remembered eternally for past acts that can cause embarrassing situations. Given this scenario, we have, on one hand, freedom of press, information and expression, values of a constitutional nature and of utmost importance for contemporary society, and, on the other hand, the right to be left alone, as a corollary of the right to privacy, privacy, honor and image, all also with constitutional status, there being the collision of these two poles in concrete cases that deal with the said topic, having the question: which pole should prevail over which? The analysis of the proposed theme is subject to debates, questioning and controversy, which demand many reflexions, since it involves distinct and mutually conflicting fundamental rights. Therefore, this study is based on articles, concrete case studies in Brazil and abroad, and case law with its broader concepts about the constitutional principles involved. In this work, an analysis of the collision between these rights will be made, presenting the method of weighting, proposed by the doctrine and based on the principle of proportionality, as a solution of this conflict. The methodology used was the hypothetical-deductive and exploratory.