Fined and censored, Monark did not violate a single law, say legal experts

Minister Alexandre de Moraes, of the Federal Supreme Court (STF), fined BRL 300,000 the digital influencer Monark, on the grounds that he would have failed to comply with a court decision – which, for the magistrate, justifies the initiation of an inquiry on suspicion of the crime of disobedience.

Jurists interviewed by People’s Gazette it is said that Monark has not violated any laws. According to them, from a constitutional point of view, in addition to having been unfairly sanctioned in previous decisions, Monark could not be investigated for the crime of disobedience.

For Alessandro Chiarottino, PhD in Constitutional Law from USP, the case reveals the “normalization of censorship in Brazil”. “There is nothing in the points listed by Moraes that could be considered a crime under Brazilian law”, he says.

In his view, a detailed legal analysis of censorship decisions makes less and less sense. “We have a really very serious situation in the country today, which is the undoing of the model that was established with the 1988 Constitution. And we don’t know where we are heading. [da decisão sobre Monark]”, observes.

For Adriano Soares da Costa, a former judge, Moraes’ decision “does not cite a single legal norm violated by the conduct of social communicators” and piles up illegalities: it was handed down in an inquiry that is unconstitutional, constitutes prior censorship and eliminates the means of Monark subsistence.

“These are extreme and unconstitutional measures, without legal provision and with the suppression of individual freedom without observing due legal process, promoted by exceptional judgment without legal provision”, he observes.

Soares da Costa also explains that, even if the decisions were constitutional, Monark could not be framed for the crime of disobedience. This is because, in the first place, there was already a sanction foreseen for the case of non-compliance with the court order, which would prevent the Justice from classifying it in the criminal type of disobedience.

“The jurisprudence of the STJ [Superior Tribunal de Justiça] has been formed in the sense that, when there are specific sanctions for cases of non-compliance with urgent protective measures, which would be fines and the possibility of preventive detention, the incidence of the criminal type of disobedience is removed. Thus, there is no typicality in Monark’s conduct, even more so because the profile suspension order is intended for digital platforms”, explains the lawyer.

Moraes had already issued a decision for social networks to demonetize all Monark profiles – which, for jurists, is also unconstitutional.

For Chiarottino, the reiteration of judicial decisions of this type prevents Brazil from being considered a full democracy. “We are no longer in a situation of full democratic rule of law. We are in a hybrid situation, between an authoritarian regime and the rule of law regime. It is a rule of law that is increasingly denying its foundations – such as freedom of expression, due process of law and respect for the physical integrity of people and their freedoms. This erosion of the Democratic State of Law is much more important than analyzing each case individually. Because we run the risk of talking forever, from now on thousand situations similar to this one: ‘here there is no crime’, ‘this here should be considered freedom of expression’, ‘this person can be arrested for this specific point’ etc”.

Soares da Costa says that the intelligence reports that support Moraes’ decision resemble those produced during the military dictatorship to pursue and arrest opponents of the regime. “By blocking Monark’s profiles on all digital platforms and social networks, there is an purge of critics of the Judiciary or of Brazilian democracy, based on the legally empty claim of ‘freedom with responsibility’, and the definition of the balance of this binomial would be made and scrutinized by the repression apparatus commanded by the minister himself”, he comments.

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Moraes cites “whistleblowing” means to support a decision against Monark

In the decision, Moraes mentions the media and checking agencies that denounced non-compliance with previous decisions and would have based his new decision.

“There is a record of news published in the press stating that Bruno Aiub has taken advantage of Spotify’s moderation failures to evade court decisions”, says the minister.

The decision also had the help of the Special Advice on Combating Disinformation of the Superior Electoral Court (TSE), which monitors Monark to identify any criticisms of the TSE. The body has played an increasingly prominent role in the censorship orders of the Judiciary.

to the website Freedom Bulletin, Monark called Moraes’ decision “persecution”. “If anyone thought that the business was going to soften or that the state of exception was going to end, quite the contrary: we are going to deepen the state of exception”, he said.