Partnership between TSE and Anatel could boost electoral censorship in Brazil

The Superior Electoral Court (TSE) and the National Telecommunications Agency (Anatel) signed a partnership on Tuesday (5) 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. The president of Anatel, Carlos Baigorri, said that the partnership allows the agency to comply with the decisions of the Electoral Court “as quickly as possible, thus protecting the voter and the elections”.

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

For two jurists consulted by People’s Gazette, the partnership is based on a mistaken view of the role of the Electoral Court, and could end up boosting censorship in elections. The error, according to them, predates this technical agreement: one should not even think about direct contact between the TSE and Anatel for decisions of this type, and even less about trying to make it more agile.

“A court, even a court that has the responsibility of ensuring the fairness of elections, should never be a body that seeks criminal prosecution. This function should be the responsibility of the Public Prosecutor’s Office. In principle, it moves when provoked. No It is up to him to address administrative authorities or regulatory agencies and say what will or cannot be said during the election, what will or will not be broadcast”, says Alessandro Chiarottino, PhD in Constitutional Law from USP.

⁠Adriano Soares da Costa, former law judge and author of the book “Electoral Law Institutions”, clarifies that “the TSE does not have original legislative functions, but only regulatory power”. The technical agreement signed on Tuesday was only possible on the basis in mistaken interpretations of electoral legislation brought by the TSE in the 2022 elections.

“There is no such provision in law approved by the National Congress, so this agreement has no basis of validity in the legal system, other than a TSE resolution, from 2022, on the eve of the presidential election, which usurped the powers of the National Congress and innovated the electoral process in the year of the election, which was prohibited by the Constitution”, he explains.

For him, the agreement is “supported by TSE resolutions, which, at this point, unduly innovated the legal system.” “The Brazilian Electoral Court is acting not as a body that manages the election and judges disputes, but also as an autonomous electoral legislative power, without delegation of legislation and without constitutional provision”, he says.

Richard Campanari, a lawyer specializing in Electoral Law and member of the Brazilian Academy of Electoral and Political Law (Abradep), disagrees with the other two jurists and considers the proposed agreement “meritorious” to contain the spread of fake news. “Collaboration between these institutions can play a crucial role in preserving the democratic process,” he says, “as long as judicial decisions are impartial and nonpartisan.”

On the other hand, for Campanari, “it is vital to address concerns related to the potential curtailment of freedom of expression and thought, notably given the incisive tone in minister Alexandre de Moraes’ statements.” “The imposition of severe sanctions and the threat of revocation of registrations and mandates raise concerns about the restriction of these fundamental freedoms”, he comments. “History teaches us that an overly intrusive state can result in the erosion of individual freedoms.”

TSE can only move due to provocation, recalls jurist

For Chiarottino, one of the main problems of the technical agreement is to normalize the actions of Justice without provocation.

“Once again in Brazil we are violating the principle according to which Justice moves based on provocation. If there are risks to the elections, the person who should verify this is not the court – or at least it should not do so directly. It should come in contact the authorities that have this responsibility, such as the Public Prosecutor’s Office or even the police authority”, he says.

He also recalls that the Brazilian legal system does not have the criminal type of fake newsand that this, in itself, is enough of an assumption to delegitimize the technical agreement signed between TSE and Anatel.

“Again, we return to the old question of fake news, which we have repeated so many times: we want to persecute people where there is no criminal law that authorizes this persecution. If it were the case to legislate on fake newsthis should occur through Congress”, he states. “It is yet another symptom of this institutional dysfunction in which we live, in which the superior courts arrogate to themselves powers that they do not have, and functions and competencies that were not assigned to them by the Federal Constitution.”