Government and Judiciary can tighten siege against freedom of expression

The freedom of expression crisis in Brazil could intensify throughout 2024, with members of the Executive and Judiciary continuing to use January 8th as a pretext for information control and censorship. Some crucial events for the subject are planned for the year, involving the Lula government, the Federal Supreme Court (STF) and the Superior Electoral Court (TSE).

In the electoral race in the municipalities, the TSE will have the same superpowers as in 2022, now boosted by a partnership with the National Telecommunications Agency (Anatel).

Flávio Dino, one of the main defenders of limitations on freedom of expression in the current federal government as Minister of Justice, will begin to make his first decisions as a member of the Supreme Court.

Furthermore, the Censorship Bill – or Fake News PL – could be voted on next year. At the same time, the Supreme Court will be able to judge the topic of general repercussion 987, on the Marco Civil da Internet, which could fill any gaps left by Congress regarding the control of expression.

Understand these and other threats to freedom of expression that Brazil may face in 2024.

TSE will maintain superpowers and have a partnership with Anatel

In the 2024 municipal elections, the TSE will maintain the superpowers it obtained during the 2022 elections, through the resolution that gave the court police power to act against “disinformative” content about the electoral process.

In December 2023, the STF rejected an action by the former Attorney General of the Republic, Augusto Aras, who asked for the suspension of this measure. With this, TSE ministers can order ex officio, without the need for provocation, the removal of content on social networks about facts that they consider “known to be untrue or seriously out of context”, or that affect the “integrity of the electoral process”.

The maneuver carried out by ministers to make it easier to exclude content is the target of criticism from the international press. The American newspaper The New York Timesfor example, has already stated that from it “a man can decide what can be said online in Brazil”, in reference to minister Alexandre de Moraes, president of the TSE, who headed the resolution.

The superpowers will be boosted by a recent agreement that the TSE made with Anatel. In December, they entered into a partnership that, among other things, aims to speed up compliance with court decisions on website blocking.

Determinations of this type, which previously required the intermediation of court officials, will now be made through a direct electronic channel between the TSE and the regulatory agency. The objective of the technical agreement is to speed up the removal of content considered harmful by the court.

When signing the agreement, Moraes stated: “Prevention is not enough. Prior regulation is not enough. There is a need for severe sanctions.”

For jurists consulted by People’s Gazettethe partnership is based on a mistaken view of the role of the Electoral Court, and could end up boosting censorship in elections.

Flávio Dino in the STF can expand fronts of attack on freedom of expression

As a recent report from the People’s GazetteDino collects facts that make him an enemy of freedom of expression.

As head of the Ministry of Justice, he sued influencers and opposition parliamentarians for questions and spoke several times of his intention to regulate the use of the internet to contain “hate and anti-democratic speech”. The new member of the STF is still one of the main supporters of the Censura PL.

In May this year, the department led by Dino even announced a precautionary measure against Google, after the technology company released a text criticizing the Fake News PL. The National Consumer Secretariat (Senacon) of the Ministry of Justice determined a fine of R$1 million per hour in case of non-compliance with the precautionary measure. Shortly after the notification, the text was taken down.

In May, in a meeting with representatives of Big Techs, Dino threatened companies that did not change their terms of use. “If you don’t change the terms of use, you will be forced,” he said. “It would be embarrassing for us to have to resort to coercive mechanisms,” he added. The meeting dealt with posts by social media users about attacks on schools.

If it depends on Dino, the modus operandi of the TSE in the 2022 elections will be repeated in future elections. At the same meeting, he stated that Brazil’s electoral process in 2022 should be seen as a “reference”.

Censorship PL may be voted on, and STF may judge topic 987

The Censorship PL – or Fake News PL – should be voted on in 2024. In the first half of the year, the opposition managed to block a more aggressive version of the project against freedom of expression, and also postpone its vote. Still, the threat against freedom of expression exists in the text.

The proposal focuses on the issue of the responsibility of social networks in relation to content published by third parties. Among the PL’s ideas are the possibility of forcing platforms to be more proactive in taking down content, attributing judgment to the State over what is a lie or truth and the privilege granted to large press outlets.

If Congress does not vote on the project or if the text does not meet the expectations of the Supreme Court and the government, the court has an ace up its sleeve: the judgment on topic 987, on the constitutionality of article 19 of the Marco Civil da Internet.

In a public hearing on the topic at the Supreme Court in March 2023, the desire for state control of expression against the right was implied at several times. The Minister of Human Rights and Citizenship, Silvio Almeida, spoke of the need for an “institutional brake that allows a cultural and ideological reorientation of society”.

Federal deputy Orlando Silva (PCdoB-SP) said that “a business model that relies on political extremism” is not acceptable, in reference to social networks. Supreme Court Minister Luís Roberto Barroso stated that, against “misinformation” and the “spread of hate”, “moderate state regulation, broad self-regulation, adequate and independent monitoring of compliance with this regulation and media education” are necessary.

For these authorities, platforms need to accept a new paradigm: they must, from now on, be the protagonists in curbing speeches that supposedly attack democracy.

There is still no set date for the judgment on topic 987.

The press may begin to suffer consequences from the decision on interviewees

In 2024, especially during the electoral race in the municipalities, the decision of the Federal Supreme Court (STF) that holds newspapers responsible for the speeches of interviewees may begin to result in acts of censorship.

Firstly, the measure could increase self-censorship in media outlets. In a recent text to the newspaper Folha de S.Paulojurist Luís Francisco Carvalho Filho pointed out that the decision establishes “a political regime of intangibility of the honor of personalities and politicians”.

For him, the decision will also “affect small and medium-sized media outlets” that could be targets “of local justice, often exercised by corporatist and authoritarian magistrates.”

To the website Power 360former STF minister Marco Aurélio Mello observed that the decision hinders journalistic activities and “compels the newspaper to carry out a real investigation into what is true or not”.

“Imagine if it is a TV outlet or an online website. Will you no longer be able to listen because the interviewee might talk nonsense? This is dangerous,” she commented.

Lula’s Ministry of Truth will operate in an election year for the first time

The year 2024 will be the first in which the National Prosecutor’s Office of the Union for the Defense of Democracy (PNDD) – also called the Ministry of Truth –, created by the Lula government at the beginning of 2023, will be able to act during an electoral race.

The body has already been called, for example, for an investigation against journalist Alexandre Garcia.

The Union’s attorney general, Jorge Messias, also ordered, in August, an investigation into false information related to the National Transplant System (SNT), following the controversy over presenter Faustão’s heart transplant.