Proposição de política pública brasileira de promoção aos direitos humanos ao esquecimento e à proteção da personalidade respeitada a preservação da memória e da informação nos bancos de dados alocados no ciberespaço.

Abstract

The Internet has substantially modified the contemporary life. It is responsible for facilitating the communication and the information, which, from its inception, became more fluidic and rapid. However, even if we recognize the unquestionable importance of this innovation, we do not listen to its deficiencies. Thought as a tool of free communication, the Internet has been a space of new conflicts that require new benefits of the State. It is in this environment that The Right to Forgetfulness gains relevance, because the infinite possibility of data allocation on the Internet makes the facts - truthful and / or untruthful - which potentially produces losses of all kinds. In face of this scenario, the present work has as a delimitation of the theme, the concretization of the Human Right to Forgetfulness, based on the theory of the network society, through the formulation of a substitute to the Law Projects in progress, which should contemplate the protection of the Personality Rights and the preservation of the Right to Memory and Information, directed to the personal data keepers on the cyberspace in Brazil. By research problem, based on the premise that the Right to Forgetfulness is a human right, it was asked how to require, from the personal data keepers of the network society, the observance of this right without violating the Fundamental Rights to Memory and Information in Brazil and without judicializing the question. The hypothesis initially suggested was that the question could be solved through the formulation of a normative public policy. It is understand that the creation of a Law, which defines with clear criteria the data that can be transmitted by the personal data keepers in cyberspace, preserving the human rights of the users of the network (Forgetfulness, Memory and Information), is the response to the problem now faced. To make the research feasible, this work was divided into four chapters. The first one, titled “The Internet and Data Perennization in the Networked Society”, aimed to present the network society theory, contextualizing the emergence of the Internet and the Brazilian Civil Code, in order to demonstrate the potential lesivity of the improper use of the information allocated in the virtual databases. The second one, entitled “The Right to Forgetfulness and the Personality Rights from the Perspective of the Human Rights Theory”, had the purpose of identifying the Right to Forgetfulness in the perspective of the human rights, through the constant reconstruction of these rights, in order to understand them as a re-signification of the human right to intimacy. To the third chapter, which aim to study the conflict between the Right to Forgetfulness, the protection of the Personality Rights and the preservation of memory and information, was attributed the name of "The Human Right to Forgetfulness on the Internet and its Conflict with the Preservation of Memory and Information". The fourth chapter, "A Public Policy of Attainment to the Right to Forgetfulness in the Databases Allocated on the Internet in Brazil for the Preservation of the Personality Rights", had as its objective to propose a substitute to the draft law in process in the National Congress that seek to realize the Human Right to Forgetfulness in the network society, protecting the Personality Rights of the individual exposed in cyberspace with the preservation of memory and information. In view of this, it was concluded that the Right to Forgetfulness is a protective human right of Personality Rights, which lacks a normative public policy or even a project that contemplates it in its specificities, being this the propositional character of the present thesis. For this purpose, as a method of approach, it was used the deductive, as a methods of procedure, historical and comparative and as a technique, the indirect documentation. It should also be noted, in what concerns the novelty, that the thematic, with the given delimitation, does not present similar work in Brazil. Considering that the concentration area of the Postgraduate Program in Law – PhD, from the University of Santa Cruz do Sul, is Social Demands and Public Policies and its thematic axis Instrumental Dimensions of Public Policies, it is perceived that this thesis is aligned with the Instituition propose, because it is a theme that has an intimate relationship with the society, representing an effective and necessary demand for peaceful and secure coexistence in the network, which was the object of the formulation of a substitutive project. It also can be emphasise that the thesis is directed by Professor Clóvis Gorczevski, in accordance with his academic emphasis, the fundamental rights, contemporary constitutionalism and public policies.