THE RIGHT TO BE FORGOTTEN AND THE CRISIS OF BALANCING: AN ANALYSIS OF TOPIC 786 OF THE BRAZILIAN SUPREME COURT

Abstract

This study investigates the legal conflict between the right to be forgotten and the rights to truth and information within the Brazilian legal system, in light of the principle of human dignity. Its main objective is to analyze the viability and limits of this institute in view of Brazilian case law and the techniques used to resolve conflicts between constitutional principles. To achieve these objectives, the research adopts a hypothetical-deductive approach, combined with a comparative procedure, within a theoretical and qualitative framework, developed through bibliographical and documentary review, analysis of federal legislation, and examination of precedents from the Superior Court of Justice and the Federal Supreme Court. Initially, the study outlines the conceptual evolution of fundamental rights and the constitutional protection of privacy, honor, and image. It then addresses the development of the right to be forgotten up to the establishment of Theme 786 by the Federal Supreme Court, which declared its incompatibility with the Federal Constitution, while preserving the possibility of controlling eventual abuses in specific cases. Finally, the study analyzes the collision of principles from the perspective of Robert Alexy’s theory of balancing, contrasting doctrinal criticisms of judicial activism and subjectivism with the application of proportionality in the judgment of Theme 786. It concludes that, although informational freedom is not absolute, Alexy’s balancing theory requires rigorous reasoning in order to prevent arbitrariness and preserve legal certainty.