Fake news inquiry completes 5 years with controversies – 03/13/2024 – Power

Established by the then president of the STF (Supreme Federal Court) Dias Toffoli in an atypical and controversial way, the fake news inquiry completes five years this Thursday (14), having accumulated the most diverse episodes in its processing.

Among the determinations that occurred in it are the case of censorship of Crusoé magazine, search and seizure against the former attorney general of the Republic Rodrigo Janot, blocking of PCO party profiles and the arrest in the act of the then Bolsonaro deputy Daniel Silveira.

Criticized from the outset, for having been opened without a request from the Public Prosecutor’s Office and based on a broad interpretation of the court’s internal regulations, the inquiry gained legitimacy as threats to the court and to democracy itself grew in volume during the Jair Bolsonaro (PL) government.

One of the main arguments in favor of continuing the investigation was that other institutions, such as the PGR (Attorney General’s Office), were being omitted.

Still in 2020, with just one vote against, the STF validated the investigation by considering an action that questioned its legality – an example of the change in atmosphere is that the Rede party, author of the question, even requested that its request be extinguished.

Appointed rapporteur of the fake news inquiry without there being a draw, Minister Alexandre de Moraes became a favorite target for Bolsonarists and accumulated power through the concentration of reporting on a series of investigations, with decisions seen as harsh and, often, controversial.

After the Bolsonaro administration, even those who see the importance of the Supreme Court’s actions in seeking to contain anti-democratic acts consider the duration of the investigation to be long. When asked about the topic, in an interview with Sheet in December, Moraes simply replied: “it will be completed when it is finished”.

Vinícius Assumpção, criminal lawyer and second vice-president of IBCCrim (Brazilian Institute of Criminal Sciences), says that an investigation lasting five years is not the most appropriate, but that there is no illegality in itself.

A fact that, for him, argues against this duration is the varied number of situations dealt with in the investigation. “I understand that we have more of an umbrella than an investigation,” he says, adding that given the secrecy it will only be possible to carry out a scrutiny at the end of the investigation.

Oscar Vilhena, who is a professor at FGV Direito SP and a columnist for Sheet, considers that the investigation time elapsed is quite long, but emphasizes that, in his opinion, the investigation sought to overcome the omission of the investigative bodies and thus contribute to containing some illegal behavior. He adds, however, that “once the threat has passed, there is no reason to keep it open.”

“We are experiencing an extraordinary situation, and the Supreme Court reacted accordingly and did not do so against the law, but based on a legal margin given to it by the rules. I reaffirm, after the storm has passed, the Supreme Court must back down.”

The article of the rules that supports the investigation says that “if there is a violation of criminal law at the headquarters or premises of the court, the president will open an investigation, if it involves an authority or person subject to his jurisdiction, or will delegate this attribution to another minister”.

It was opened to investigate fraudulent news, false reports of crime, slanderous reports, threats and other slanderous, defamatory or insulting offenses against the Supreme Court and its ministers.

The object of the investigation also included: “the verification of the existence of financing schemes and mass dissemination on social networks”, against the independence of the Judiciary and the Rule of Law.

Among critics, especially in the Bolsonarist camp, it was nicknamed the “inquiry into the end of the world”.

Since 2019, several targets of the investigation have had their social media profiles blocked, raising a complex debate about the proportionality of the measure in relation to freedom of expression. There is currently no specific provision in the law authorizing this type of precautionary measure.

The relationship with the Public Ministry since the launch of the investigation has also been marked by disputes.

Under the command of Raquel Dodge, the PGR defended more than once that the investigation be archived, pointing out that the way the investigation was being conducted would concentrate criminal functions on the judge.

His successor, Augusto Aras, adopted a different stance, saying that the investigation was constitutional, as long as it was restricted to guaranteeing the safety of court members and had the participation of the Public Ministry.

As in other investigations under his report, Moraes authorized precautionary measures regardless of the PGR’s consent.

After the first major operation against Bolsonaro’s allies in the investigation, when 29 people were searched and seized, despite the PGR’s disagreement, Aras even asked for the investigation to be suspended until the action proposed by the Network was judged.

Another controversial aspect is the confidential nature of the process.

In general, the minister refutes criticism, as at the end of 2022, when the OAB sent a letter requesting access for lawyers to evidence against their clients in the investigation into fake news and anti-democratic acts.

Moraes stated that not all requests had been met, because in some cases the lawyers did not represent any of those investigated and in others the files were already public.

In another episode, still in June 2020, Moraes released orders in which he allowed access to the fake news investigation files to some investigated “for full knowledge of the investigations related to them”, that is, only specific attachments.

Raquel Scalcon, lawyer and professor at FGV Direito SP, states that it is not expected to have access to what is in progress, but only to what is documented.

“The problem here is the right of the person under investigation to have access to what is already documented and for them to be able to see the whole picture,” she says, adding that the number of related petitions tends to make this overview difficult.

Heloisa Câmara, who is a professor at UFPR (Federal University of Paraná) and has a doctorate in State law, says that, despite there being an exceptionality in the fake news investigation, the first group of criticisms of its establishment was to a certain extent pacified.

From now on, she understands that other institutions must assume a relevant and continuous role in defending democracy.