Moraes’ decision on Telegram is generic without pointing out a violated law article – 05/11/2023 – Power

In the decision in which he ordered Telegram to delete the message against the PL of Fake News, the Minister of the STF (Federal Supreme Court) Alexandre de Moraes does not point out which articles of the law the company would have violated, despite speaking of unlawful conduct.

In addition, in the evaluation of lawyers and professors consulted by the Sheetthe connection of the case with the object of the fake news investigation should be better founded, under the risk of virtually any topic related to disinformation being included in the investigation that has been running in the court since 2019.

“Telegram’s conduct constitutes, in theory, not only an abuse of economic power on the eve of the Bill’s vote, for trying to illegally and immorally impact public opinion and the vote of parliamentarians – but also a flagrant inducement and instigation to maintain of various criminal conducts practiced by the digital militias investigated in INQ 4.874, with aggravation of risks to the security of parliamentarians, members of the Federal Supreme Court and the Democratic State of Law itself, whose protection is the cause of the establishment of INQ. 4.781”, says part of the decision.

The minister even quotes an article of the American Convention on Human Rights when talking about freedom of expression.

Other points are seen as problematic by the experts consulted. One of them would be the lack of proportionality in determining the suspension of the application, in case of non-compliance, instead of just imposing a fine.

Lawyer Flávia Lefèvre, specialist in digital and consumer law, considers that the decision to determine the blocking in case of non-compliance was disproportionate and left open a principle of judicial decisions, which is that of reasoned motivation. She points out that, especially as it is a criminal investigation, compliance with this principle is important.

In her assessment, there was abuse of freedom of expression by Telegram and one can speak of abuse of economic power or a very significant position in the market, but she highlights that the generic mention of having had “the use of immoral and illegal mechanisms that can , in theory, constitute abuse of economic power” does not support the severity of the penalties imposed by the minister in case of non-compliance – and which could even reach the users of the application.

“He says that Telegram’s attitude in releasing this message is immoral and illegal, but he does not mention any legal device to indicate what this illegality would be”, he says.

She also questions whether the fake news inquiry would be the right way to deal with the fact and highlights measures taken by other bodies, such as the Federal Public Ministry and Senacon (National Consumer Secretariat) of the Ministry of Justice.

The minister determined that even individuals and legal entities that came to use the application through VPN, in case of blocking, would be subject to liability, such as fines. Something the minister had already done in last year’s blocking decision.

Paulo Rená da Silva Santarém, who is a doctoral candidate in Law, State and Constitution at the University of Brasília and co-director of the NGO Aqualtune Lab —member of the Coalition Rights on the Network— considers that there was economic abuse and communicational abuse in the conduct of Telegram, but criticizes that the minister did not indicate the legal bases of the decision.

“This decision does not respect the principle of strict legality” he says. “If we are even talking about criminal responsibility, he needs to say which article is being violated.”

Rená also criticizes the use of the word immorality. “It is curious that he calls it immoral. Immorality is a principle of public administration, public administration has a fence in relation to immorality”, he says. ” [É] indicative of the authoritarian nature of the decision’s rationale, however adequate the result is, the rationale was not adequate.”

In the decision, Moraes writes that: “In a Democracy, it is possible that every social or economic group that feels harmed in its corporate objectives starts to look for mechanisms –legally and morally acceptable– to directly influence the institutions of the State, or indirectly the opinion public”.

“If the mechanisms are not legally and morally acceptable – there will be serious distortion and characterization of abuse of economic power, with the possibility of civil, administrative and criminal liability”, says the minister.

Carlos Affonso Souza, lawyer and director of the ITS (Institute of Technology and Society), considers that the minister needed to have better developed the connection between the company’s conduct and the object of the fake news investigation in the decision.

Minister Moraes underlined in bold an excerpt from the object that he says is part of the investigation: “the verification of the existence of financing schemes and mass dissemination on social networks, with the aim of harming or exposing the danger of injury to the independence of the Judiciary and the rule of law”.

For Souza, the part of the object of the investigation that talks about “mass disclosure” on social networks would be closer to the Telegram case. The “financing scheme” part would be the link to the case of Google, a company that was also the subject of a similar decision last week.

On the issue of merit, Souza considers that it is debatable to say that the Telegram text would be disinformation. For him, the company is exaggerating when talking about censorship and also when saying that the project would be an attack on democracy, but he considers that the criticism that the application makes that there would be an increase in vigilantism due to the project of law and that there are points that would need to be improved.

“Telegram exaggerates, it may even misunderstand, but to say that this note itself is a piece of misinformation, I think this is a debatable point,” he says.

In the argumentation part, Souza also points out as problematic that the decision does not make a distinction of why the company’s conduct differs from other civil society campaigns to pressure Congress, under the risk of criminalizing this type of action without democratic restrictions.