Garantia do direito ao esquecimento após o cumprimento da pena: uma análise à luz da dignidade da pessoa humana

Abstract

The present work is intended for the analysis of the so-called right to be forgotten as a fundamental guarantee for the individual who has served their sentence, from the perspective of human dignity. Currently, it is possible to refer to society as an "information society," with the right to be forgotten emerging as a means of defending fundamental rights and the individual's personality. In light of this, the analysis begins with fundamental rights concerning their conceptualization, history, and the types enshrined in the Brazilian legal system. Theoretical delimitations are made regarding the rights to social communication- especially freedom of expression, thought, and information- and the rights of personality, namely the right to privacy, intimacy, and honor. Next, it specifically addresses the right to be forgotten, discussing its conceptualization, the conflict between the rights in question, the public interest and the time lapse as touchstones and benchmarks for the application of the right to be forgotten, and the analysis of relevant leading cases within the scope of Brazilian and international jurisprudence. Subsequently, the protection of human dignity within the Brazilian legal system is analyzed, as well as the functions of punishment and the possibility of resocialization. The possibility of the right to be forgotten as a means to fulfill the resocializing function of the penalty is questioned. In addition, the possibility is questioned whether an individual, after serving their sentence, should not have past information about the committed criminal offense against them, so as not to be eternally penalized by the information. One arrives at the reflection on the possibility or not of applying the right to be forgotten as a form of protection for former criminals against past information in light of human dignity.