Fachin votes to maintain TSE powers resolution against fake news

The Federal Supreme Court (STF) began judging this Friday (8), in the virtual plenary, an action that questions the resolution of the Superior Electoral Court (TSE) that gave police power to the Court to act against “misinformation” about the process electoral. The resolution, dated October 20 last year, allows TSE ministers to order the removal of content on social media about facts that they consider “known to be untrue or seriously out of context” that affect the “integrity of the electoral process”.

So far, the score is 3-0 to maintain the validity of the measure. As the case is analyzed in the virtual plenary, ministers simply cast their votes in the Court system, without debating the topic.

The resolution, approved 10 days before the second round of elections, was used to remove content considered false news by ministers, such as those that attributed corruption to Lula, due to the fact that his convictions had been annulled. At the time, experts warned of the risks of the rule and its use after the electoral period.

The action against the resolution was filed by the former Attorney General of the Republic, Augusto Aras, on October 21, 2022. Aras questioned excerpts of the document that give the TSE the power to determine ex officio (i.e., without provocation) the removal of social media publications, something not provided for in the Constitution, with the possibility of suspending platforms or imposing fines that can reach R$150,000 per hour of non-compliance. The former prosecutor also pointed out as unconstitutional the possibility of the Electoral Court temporarily removing profiles and pages on social networks, as Minister Alexandre de Moraes did.

Minister Edson Fachin, rapporteur of the action, voted against Aras’ arguments, an understanding followed by ministers Alexandre de Moraes and Cármen Lúcia. According to him, the right to freedom of expression “can be compromised, specifically, in the case in which it is used to erode trust and the legitimacy of political-electoral fairness. This is a specific concession, analyzed in light of the concrete violation of electoral rules and not prior and previous censorship,” he wrote.

He states that freedom of expression cannot be used to attack democracy, and that the resolution seeks to “curb the use of virtual persona, concealment through social networks, so that this locus serves to disseminate false information that can impact elections and the integrity of the electoral process.”

At the time of the challenge, Aras also presented a request for an injunction to suspend the resolution, but the majority of ministers maintained its validity. The trial of the action will continue in a virtual plenary session until December 18th.