O direito ao esquecimento como mecanismo para assegurar a proibição da perpetuação das penas

Abstract

This doctoral investigation examines the right to be let alone within contemporary legal systems, emphasizing its application in criminal law. Grounded in the systemic theories of Niklas Luhmann, Gunther Teubner, and Marcelo Neves, the study adopts an interdisciplinary perspective that connects concepts of social complexity, self-reference, reflexivity, and intersystemic communication to unveil the challenges imposed on Law in the face of a hyperconnected and multidimensional society. The research proceeds from the premise that the right to be let alone constitutes an instrument for protecting human dignity and a mechanism that materializes the prohibition of perpetual sanctions, even when manifested symbolically or indirectly. To this end, qualitative methodology was employed through bibliographic review and critical analysis of national and foreign judicial precedents, encompassing the emblematic cases of Lebach (Germany) and Google Spain (European Union), among other significant jurisprudential manifestations. Through theoretical-jurisprudential examination, it became evident that the repeated exposure of past facts, devoid of contemporary public interest, may constitute an indirect form of continuous punishment, violating the principles of penalty individualization and social reintegration. The systemic structure of Law, while grounded in its own codes such as the lawful/unlawful binary, demonstrates permeability to social pressures and must respond to such demands through legitimate and proportional action. Furthermore, it was established that the right to be let alone, far from constituting an instrument of historical suppression or illegitimate restriction of freedom of expression, aims to ensure that past information, lacking current relevance and causing harm to someone's identity or private life, does not remain in unlimited circulation. The theoretical proposal of transconstitutionalism reinforces the necessity of cooperation between distinct legal orders, enabling the exchange of solutions and experiences without implying normative subordination. The investigation concludes that the right to be let alone reveals itself as an institute that limits the disproportionate temporal perpetuation of social punishment, ensuring that individuals preserve their capacity for existential reinvention through the full exercise of freedom and personal self-determination. Understanding this right as a corollary of both human dignity and the rational foundations that legitimize state punitive intervention allows recognition of the legal system as an instrument genuinely committed to restorative justice and the definitive overcoming of social mechanisms of permanent exclusion.