Congress is silent on fake news; TSE faces resolution – 11/03/2023 – Power

With less than a year to go before the elections, the country runs the risk of reaching more than one election without structured rules to combat fake news.

With regard to the specific context of the electoral dispute, it is already certain that Congress will not approve new rules, since according to the principle of electoral annuality, what is valid for 2024 would have to have been voted on and sanctioned by October 5th, which is not occurred.

In 2021, the Chamber approved a new Electoral Code, which also included the theme of the internet campaign and involved controversial proposals throughout its discussion.

Broad and the target of criticism on more than one front, the project did not move forward in the Senate. The mini-electoral reform adopted by the Chamber close to the deadline did not even address the issue.

Another path, which would serve to increase the platforms’ obligations, is bill 2,630, which became known as the Fake News PL.

The latest versions of the proposal provided for more responsibility for companies for what circulates within them, especially paid content, in addition to introducing a series of transparency requirements.

In a scenario in which PL 2,630 does not advance, the Legislature will once again leave a vacuum that will probably be filled by the Electoral Court.

The president of the TSE (Superior Electoral Court), minister Alexandre de Moraes, recently made demands on the matter, as did the president of the STF (Supreme Federal Court), minister Luís Roberto Barroso.

Yasmin Curzy, law professor at FGV-Rio, sees inaction on the topic as an omission by the Legislature and highlights that many of the mechanisms that exist today are used to deal with individual cases, defending the importance of broad regulation, which advances, for example on transparency obligations and platform policies.

“There is an urgent need to update and specify legislation to adequately address the issue of disinformation in elections, taking into account the complexity and scale of the problem in the digital environment,” he says.

Criticized by parliamentarians for exceeding the limits of its powers, the TSE has been using resolutions in recent years to fill gaps.

“The Election Law, which protects against facts that are known to be untrue, is a law from 1997, so it is a completely analogous regulation on the subject of elections”, says Anna Paula Mendes, professor of electoral law and academic coordinator at Abradep (Brazilian Academy of Law Electoral and Political).

She states that mechanisms such as the right to reply have not been revisited and are not the most appropriate design to deal with the issue. “It was legislation designed with the mind of another time in mind,” she says.

Through resolutions, the TSE vetoed mass shootings and also the dissemination of seriously decontextualized facts, in addition to those known to be untrue.

The deadline for the court to issue resolutions for 2024 ends on March 5. Until then, the court will have to define what will be done with the controversial resolution that was approved between the first and second rounds of last year’s election.

In 2022, in an election that coexisted with the constant backdrop of risk to democracy itself, amid an engineered fake news campaign against electronic voting machines, the court changed the rules of the game, ten days before the election, and expanded its power to remove untrue and out-of-contextual content about electoral integrity, even without being called into action.

It also reduced the deadline for big techs to delete publications to two hours, under penalty of a fine of R$100,000 per hour, and restricted the broadcast of political advertisements from 48 hours before the election.

In relation to the presidency of the TSE, it provided for the possibility of removing identical content on which there had already been a previous decision, temporarily suspending profiles, accounts and channels in the event of persistent publication of false or out of context information, and even the suspension of platforms in the event of repeated failure to comply with orders.

Diogo Rais, professor of electoral and digital law at Mackenzie University, considers that as the resolution stands, it would not be possible to apply it in the municipal election.

He assesses that the TSE would not even be able to handle the volume of the municipal election, to keep the powers concentrated within it, nor is passing the task on to the Regional Electoral Courts seen as an alternative.

“Decentralizing, for example, to 27 TREs could cause us to have a lot of incongruity or even difficulty in operationalization”, he says.

Another front of action by the TSE was the signing of agreements with the main social networks and platforms, along with the creation of a disinformation program, with a special advisor responsible for running it.

Among the aspects considered positive of the agreements are making contact between the TSE team and companies more agile, with the creation of channels for directly sending suspicious links.

The agreements did not cover what type of content should or should not be removed, something defined by each company’s policies. It was foreseen, however, that they should publish rules on civic integrity.

The gaps in the rules in relation to the Brazilian scenario, however, had already been highlighted by experts and civil society months before the election. Only after the second round, for example, did Facebook and Instagram begin to remove posts calling for military intervention in Brazil.

Francisco Brito Cruz, executive director of Internet Lab, the main gap in the legislation is the lack of obligations for platforms, in addition to complying with court decisions, and sees PL 2630 as progress for the election.

However, he sees that it is still possible to innovate and advance within the scope of cooperation agreements, in terms of how platforms develop and interpret their rules.

“Are the platforms willing to discuss their usage policies in this discussion of cooperation?”, he says, seeing the resolutions as a way to include social participation in this discussion about policies and even some elements of transparency.

Wanted by Sheetthe court informed that there is still no defined schedule for public hearings to address the next resolutions.